FAQ

Law Office of Erin R. L. McKinley
Do I need an attorney?

In short, yes. I am not just saying that because I want you to hire us to help you with your case. Family law issues, such as divorce, child custody, visitation, spousal support, and property separation are complex. They require a professional who will guide you through the process, will advise you of the law, will help you make informed decisions and will save you from what could otherwise be legal suicide.

 

Family, more than any other specialty of law, is highly emotional. In some cases, divorcing couples have spent years together and now, they are trying to figure out life with a whole new set of circumstances. Also, if the couple has children, that relationship does not end at the divorce; these couples must be in each other’s lives for the rest of their children’s lives. Having an attorney by your side who will not get drawn in by the emotion and be able to keep the end goal in mind allows the clients to focus on themselves and their families.

Is settlement something I should consider?

Again, yes, settlement is the preferred way to resolve all family law disputes. It is the best for several reasons. First, parties that settle their cases get through the divorce process quicker. The average divorce in California can take more than one year to be finalized. If there are a lot of issues or both sides are contentious, a divorce could take much longer. Further, the courts that handle family law cases are especially busy and overcrowded. It could take several months for a disputed issue to be heard by a Judge in court. Yet, very complicated issues or cases can be settled in a matter of weeks.

Having a skilled family law attorney is essential to negotiating a fair and equitable settlement agreement. The attorney will help you to identify the issues, how those issues are impacted by the law and what positions are reasonable in terms of settlement. Armed with that knowledge, you then can make an informed decision and can more effectively “choose your battles”.

Second, parties that settle their cases spend less money on their divorces. Family law attorneys bill by the hour. The more work an attorney does on your behalf, the more you will pay them. However, an experienced family law attorney’s guidance and advice can save you more than just money. Use your attorney’s time with great discretion. Do not waste your retainer fee on whimsical matters. Remember, every action you take costs money. Every petition or response has a filing fee. So does every request for order, or notice of motion, absent certain exceptions. There are also process server fees, expert witness fees, fees to obtain information through discovery, etc. Simply stated, every step you take (or don’t take) will cost you money, so pick your steps carefully.

What if settlement is not possible in my case? What if the other side is unreasonable?

At the Law Office if Erin R. L. McKinley, we understand that settlement is not always an option. There are some issues that are not appropriate for settlement and require immediate legal action. For example, where an immediate threat of harm exists to the parties or their children, such as where domestic violence, substance abuse, or kidnapping has occurred, the most appropriate course of action is to seek immediate orders of the court. Or, if your spouse takes an unreasonable position that is unsupported by the law or facts, and you would get a better deal from the Judge, than the matter ought to be litigated. Again, an experienced family law attorney will be able to guide you through the decision of whether to settle or litigate.

How is property divided after divorce?

California is a “Community Property” state. Community property laws and principles are designed to recognize the equal contributions and obligations of both spouses during marriage The “Community Estate” begins on the date of marriage and ends upon the “date of separation”. Community property is defined in Family Code § 760 as “all property, real or personal, wherever situated, acquired by a married person during marriage while domiciled in this state”. Usually, property acquired during the marriage, whether asset or debt, is considered Community Property and is divided equally between the parties during the dissolution process.

The other type of property characterization is “Separate Property”. Family Code § 770 defines separate property as “all property owned by the person before marriage, all property acquired by the person after marriage by gift, bequest, devise, or descent, [or] the rents, issues, and profits of the property described in this section.” These are not subject to division upon divorce and are that spouse’s separate property.

Dividing marital property is much more complicated than identifying whether the property is “community” or “separate”. There are many rules, exceptions and formulas that can apply to any given case. Often, experts such as a forensic accountants or real estate appraisers are hired by a party or appointed by the court to assist characterizing property involved in a dissolution or legal separation.

How much does divorce cost?

This is probably the most frequently asked question of family law attorneys.  The answer is “It depends.” The Law Office of Erin R. L. McKinley bills by the hour and has a “retainer fee”. In addition to the cost of the attorney (retainer and hourly rate), clients need to consider filing fees, service fees and possibly expert fees. Unfortunately, no attorney can accurately predict how much a divorce will cost. 

Attorneys who charge flat fees are risky. Yes, you might be paying a lower cost upfront, but if the case becomes too complicated, your attorney might slow down on your case because it would not be cost-effective for them. They anticipated that your dissolution would only take “x” amount of time and now, you are requiring more of them. This could hurt you and your case in the long run by not having an attorney who is committed to spending as much times on your case is necessary.

While it may be impossible to tell exactly how much a divorce will cost, it will certainly cost more without competent legal help. Family law matters are paid for with far more than just money.  Far too often, children end up paying the price for their parent’s improperly handled case.  A good attorney will assist you through the process in a cost-effective manner.

What is a retainer and why do attorneys charge retainers?

Now you might be asking yourself what is a retainer and why do attorneys charge retainers. First, a retainer is an agreed-upon sum of money which clients are required to pay at the onset of the firm’s representation. The only way that a firm can be guaranteed to be paid for the work they are asked to do is to collect a “retainer”.  It is like putting your money in a checking account. As the attorney does work for you, they will pull their fees from this account to pay your invoice. When the account gets low, the money must be replenished.

Second, lawyers expect to be paid for their time and professional services, just like anybody else who works for a living. A retainer is not just a guarantee that the attorney will be paid for the work they do, but it is also an assurance that you will take your case as seriously as the attorney.

What is child support and why is it owed/paid?

Every child is entitled to financial support from both of his or her parents. As such, if two parents are not raising a child together, child support is generally required. Child support is mandated by law and if there is a support order in place, the support must be paid or there are consequences including suspension of driver’s license.  Child support may also be required even in cases where the paying parent does not have visitation rights with the child.

To ensure that every child gets the support he or she needs, California has established a standard formula that is used to calculate a parent’s support obligation. This formula generally must be used to determine the amount of support that is to be paid, and the parents typically cannot negotiate a lower support amount amongst themselves when creating a divorce settlement. Further, child support cannot be waived in a pre-marital or post-marital agreement. This means that while a parent could pay more support than the standard formula would normally require, he or she generally cannot pay less.

What factors are used to calculate the child support amount?

The standard formula that is used to calculate a parent’s child support obligation is a complex formula. To make it easier for the amount of support to be determined, a calculator has been provided by the State of California (https://www.cse.ca.gov/ChildSupport/cse/guidelineCalculator).   You can simply enter your relevant information into the fields and the calculator will determine how much support must be paid.

Some of the factors that are incorporated to determine a parent’s support obligation include:

  • The amount of income earned by each of the child’s parents including income from all sources such as wages and self-employment income
  • A mortgage obligation, property tax obligation and other required expenses
  • The number of children that the parents have together
  • Any children from a prior marriage or any other outstanding court-ordered support obligations
  • The amount of time that the child spends in each parent’s physical custody. (This is calculated by a percentage of time.)
  • Required union dues
  • Health insurance costs
  • Mandatory retirement contributions
  • The income of a new spouse if either of the parents have remarried

These are just a few of the many different items that are used to assess what is an appropriate amount of support. If a child has special needs that necessitate extra expense, such as a child who is disabled and who requires costly care or medical treatment, then the child’s individual situation can also be factored in to assess a support obligation.

Once the appropriate amount of child support is determined, a child support order will go into effect and the paying parent must comply with the support order.  The order cannot be changed except in situations where there is a material change in circumstances and the court agrees to alter the support order.  The money is typically deducted automatically from the paying parent’s income and paid to the recipient parent in order to ensure that the child receives the necessary support.

How long will I receive/pay child support?

Child support generally continues until the minor child emancipates or until otherwise noted in the child support order.  Under California law, a parent’s obligation to pay support continues until the child becomes 18 years old.  However, the current support obligation may continue until the child is 19, if the child is unmarried and attending high school full time.  Also, a court may order current child support to continue after the child emancipates because of special circumstances.

If there are arrears (past due support) owed on the child support case, the court may continue to enforce collection of the arrears until the case is paid in full, including any accrued interest.  

What is spousal support?

Spousal support is the term used for payments from one spouse to another after a divorce for the purpose of maintaining the former spouse’s standard of living during the marriage. The term “alimony” means the same thing as “spousal support.” Spousal support laws seek to prevent a divorced spouse from suffering a standard of living decrease. Both terms are interchangeable when discussing post-divorce support.

Often times after divorce, one spouse is untrained or has been out of the workforce for such a significant amount of time that it becomes difficult for them to quickly attain a job or professional position that allows them to maintain their expected standard of living. Spousal support in California is meant to bridge the gap between the time it takes for that spouse to obtain employment or resources that meet their cost of living needs. The end goal is that the spouse receiving support will eventually become financially independent and no longer need the monthly support anymore.

How long am I expected to receive/pay spousal support?

Marriages of 10 years or more are considered marriages of long duration in California. As such the court is not allowed to set a definite termination date for spousal support at the time of the trial. Many people and attorneys misinterpret this rule to mean that California has lifetime spousal support in marriages of long duration. This is not the case, as proven by the citation below:

As recognized by our Supreme Court, the public policy of this state has progressed from one which “entitled some women to lifelong alimony as a condition of the marital contract of support to one that entitles either spouse to post-dissolution support for only so long as is necessary to become self-supporting.” In re Marriage of Schmir (2005) 134 CA4 432.

While the court cannot terminate spousal support by a certain date, they can set a date for termination unless the supported spouse applies to extend the support on or before that date. In marriages that are just over 10 years, or the spouse has excellent career prospects, this is often a fruitful strategy to pursue. In marriages of less than 10 years, it is presumed that spousal support should be awarded for no longer than half the length of the marriage.

How is spousal support calculated?

There is a very specific code section that lays out the factors that go into determining a spousal support amount. Family Code § 4320 states:

“In ordering spousal support under this part, the court shall consider all of the following circumstances:

(a) 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:

(1) 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.

(2) 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.

(b) 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.

(c) 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.

(d) The needs of each party based on the standard of living established during the marriage.

(e) The obligations and assets, including the separate property, of each party.

(f) The duration of the marriage.

(g) 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.

(h) The age and health of the parties.

(i) Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, 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.

(j) The immediate and specific tax consequences to each party.

(k) The balance of the hardships to each party.

(l) 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.

(m) 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 4324.5 or 4325.

(n) Any other factors the court determines are just and equitable.”