What You Need to Know About California Divorce Law

Attorney with hammer

When love doesn’t end up as “til death do us part,” you need to know your rights. There are many things to consider, both for your financial and legal rights. 

In California, family circumstances such as the number of years married, children, and spousal support will determine the rights and length of time for the divorce to be final. 

California is a “no-fault” divorce state. This means that no party is found at fault in the divorce. The most common reason for filing is irreconcilable differences, meaning that you have exhausted all means of reconciling and still want to get a divorce. 

So, what are your rights in the state of California? Let’s take a look at them.

Division of Property

In California, your property is considered either separate or community property in the case of a divorce.

Separate Property

Separate property refers to any money or debt belonging to an individual before the marriage. The property may be:

  • Any real property owned – houses, rental properties, etc.
  • Any gifts or inheritances received from family or other individuals
  • Property in one individual’s name only during the marriage but not used by the other spouse or for the benefit of the marriage
  • Any property or debts designated as separate in a prenuptial agreement

Community Property 

This refers to any real property, money, or debt obtained during the marriage and benefits both parties. In California, this property is to be equally divided between both parties of the divorce. 

The type of property considered community are:

  • House
  • Car
  • Furniture
  • Clothing
  • Bank accounts and cash
  • Pension plans and retirement accounts
  • Business
  • Patents

If there is no legal way to divide equally, both parties will need to agree on the property’s distribution. 

Commingling Property

When there is a combination of community and separate property, this is called commingling property. 

For example, if a spouse owned a house before the marriage and sold it after getting married, using the profits as a down-payment on a new home, the down-payment is considered separate property. But if the house payment is made using both parties’ income, the equity is deemed commingled. 

It can get complicated separating commingled assets. Your lawyer and the courts use different methods to trace the assets’ origin and determine how to divide them. It’s best to consult a lawyer to figure out the best way to approach dividing commingled assets. 

Same-Sex Marriage & Divorce

The U.S. Supreme Court declared same-sex marriage legal nationwide in 2015. In California, same-sex divorce is the same as a heterosexual divorce. 

As long as you meet the legal requirements, including residency, the divorce will proceed as usual. Property and child support are also treated equally under California law. 

Spousal Support (also known as Entitlements)

Upon divorce, you may be entitled to spousal support. There are specific requirements to determine eligibility for entitlements. The spousal order outlines the amount a spouse or domestic partner pays the other party. 

The following conditions qualify for spousal support are:

  • The length of the marriage
  • Any issues of domestic violence
  • The age and health conditions of both parties
  • Ability to pay by supporting spouse
  • Tax consequences
  • The goal of self-support

If you feel you are entitled to spousal support or want to know your options, your lawyer can advise if you meet the requirements and how to proceed.

Child Custody & Support

Child custody and child support can get messy and complicated. It’s best to work with your lawyer to determine the best way to proceed. California custody and support laws do provide guidelines for determination. 

The court uses the following criteria to determine child support:

  • Net income of both parents
  • Age of children
  • Time children spend with each spouse
  • Who declares children as dependent for tax purposes
  • Retirement plan contributions
  • Health insurance costs
  • Mortgage interest and property taxes of both parents

As far as custody of children goes, there are two types: Joint & Sole custody. Joint custody is when both parents share the rights and responsibility for the child(ren) to make decisions on health, welfare, and education. 

For sSole custody, one parent has the full responsibility of health, education, and welfare of the children(ren). In joint custody, the children(ren) spends time with both parents as determined by each party and the court. When sole custody is determined, the children(ren) live with one parent, and the other parent has visitation as determined by the courts. 

Where to Find Help

At Azemika & Azemika, our law firm’s practice specializes in the field of family law. As a result, we can handle divorce cases, dissolution of domestic partnerships, child custody, visitation, child and spousal support, paternity, abandonment, and adoptions. 

With efficiency and great attention to detail, our partners at Azemika & Azemika Law use our vast experience in family law to customize each case to our clients’ needs. Contact us today for a free case consultation.

Child Custody and Visitation Facts for California Dads

Child Custody and Visitation Facts for California Dads

“I want a divorce.” These are the last words any husband wants to hear.

It’s inevitable. You’re getting a divorce lawyer, and you have to start considering how things will change (from your belongings to your life). You have to split the “estate,” from your shared belongings to money and other assets. 

But what about the kids? Who gets the kids and when? 

Unfortunately, according to the American Psychological Association, divorce happens to 40 to 50% of married couples in the United States. The divorce rate for future marriages is even higher. 

But only a small percentage of divorces go to court, usually due to a custody battle. 

For fathers, custody battles can be an incredibly challenging aspect of divorce, especially when considering what is best for the children. How do you know what your rights are as a father fighting for custody or visitation of your children? 

Navigating custody battles can be intimidating and a trying time for fathers, so knowing your rights and the facts will help you set any expectations for the process. 

Courts and the Law

Men aren’t legally at a disadvantage. According to California law, judges can’t make a decision regarding custody or visitation based on gender. 

As long as both parents are fit, California courts will offer both parents an equitable chance at custody. 

Entitlement

Plain and simple, entitlement doesn’t exist in the courts because judges can’t decide based on gender. 

This decision isn’t about what you want or think you deserve. The judge’s decision will be based on the best interest of the child. In most cases, the courts believe that the best situation is for the child to have both parents in the picture — known as frequent and continuing contact

Parenting Roles

What did your world look like before the divorce? What was your daily routine? What was your child’s? 

Considering what life was like before the divorce, the judge will decide with one goal in mind: not to disrupt the child’s life. Keeping everything as normal as possible and moving forward in the child’s best interest is the primary goal. 

The court will consider how time was used before the divorce (by both parents) and how responsibilities were divided. If you worked 60 hours a week before the divorce, do you plan to after the divorce is finalized? Will this leave a reasonable amount of time for parenting and quality time? 

Two Types of Custody

There are two lines of custody when it comes down to how the courts decide what is in the child’s best interest.

1. Legal Custody

Legal custody involves making decisions about the child regarding several things, including schooling, organizations, travel, health specialists, and extracurricular activities. 

2. Physical Custody

Physical custody refers to where the child is and when. This form of custody takes into account the child’s primary residence, visitation times, primary custody agreements, and more. 

Generally, physical custody results in the child spending more time with one parent than the other, even if a joint custody agreement is reached. It’s near impossible for time to be split exactly 50/50 in every situation. 

Four Types of Visitation 

Shared time is essential to any parent facing a divorce situation. Time with both parents is important to a balanced upbringing. California courts select one of four visitation types based on what is best for the child and other factors. 

1. Scheduled Visitation

Visitation on a schedule prevents any miscommunication or confusion regarding who sees the child and when. Specific dates and times will be agreed upon by the parents and the court. 

2. Reasonable Visitation

This open-ended form of visitation allows for the parents to agree on their own. This type of visitation requires solid co-parenting skills from each parent.  

3. Supervised Visitation

Supervised visitation requires that the visitation with one parent be monitored by the other parent or an agency professional. This type of visitation is typically used for the child’s safety and well-being when one parent is not deemed fit to be alone with the child. 

4. No Visitation

Suppose time with one parent would be physically or emotionally harmful to the child. In that case, the child’s best interest is for the parent not to contact them. 

Consult with an Attorney For Advice

When facing a custody battle, you need the best representation possible — a lawyer that knows the judge and court as well as one who can help you fight for your rights as a parent who wants what is best for their child. 

Azemika & Azemika Law in Bakersfield has helped families navigate divorce and child custody cases for more than 30 years, providing strong trust behind their legal guidance. 

For a family-oriented firm at an affordable cost, contact Azemika & Azemika Law today.

California Child Adoption Requirements

California Child Adoption Requirements

Adoption is a legal agreement under which the foster parents become personally liable concerning the child they adopt and gain all legal parental rights.

If you hope to achieve your parenting aspirations, it can be a great way to create or extend your family by bringing a child into your household and your heart. Indeed, each year in California, hundreds of thousands of successful adoption processes take place. In this way, many children who otherwise would not have their own families have become part of loving households. 

Their adoptive parents provide them with the treatment, security, and opportunity they need for safe personal development and growth.

Nevertheless, the process of child adoption in California can be life-changing, but also challenging and even confusing at times. It is also necessary for prospective adoptive parents to meet early on with a professional adoption attorney to know their options and better understand California child adoption laws.

Each state has its adoption process and laws, but the procedure will vary significantly for families in various states. As a native of California, you may want to consult with an adoption agency or adoption specialist who is very experienced with California child adoption laws and policies. 

California Child Adoption Laws and Requirements

Adoption law comes under family law, which is regulated largely by individual states and differs greatly across the world.

The following are some significant factors in the adoption process and stepparent adoption in California:

1. Financial Status Requirements

Although you do not have to buy your own house to become an adoptive parent or reach a predetermined income standard, we have all heard the anecdotes of how much it takes to raise a child. 

Therefore, financial status, especially in single-parent adoptions, is often a concern. The court may require evidence that you can help and provide for the child as your benefits will come from employment, a pension, or disability compensation. 

A history of stable work can be seen by most courts not only as a symbol of financial security, but also as evidence of transparency and maturity. Outside the home, all members of a married pair or domestic partnership can work.

2.  Requirements for an International Adoption in California

As long as the adoption is finalized in a country of the Hague Convention, California will accept international adoption edicts issued under the laws of the United States and the country which authorized the adoption. In California, readoption is voluntary but may be necessary by the U.S. Homeland Security Agency. Readoption is the method of updating and legitimizing international recognition by a state court.

The procedure entails at least one in-home visit and filing the adoption appeal, the report of the interregional adoption court, financial records, the report of the home study, and the final order of adoption. 

A California birth certificate can be received by each California citizen who adopts internationally. Upon issuance of an adoption statement from the court or a readoption order, the state registration may create a new birth certificate.

3. Criminal Background Check

As part of adoption hearings, most states require a criminal background check. Minor violations, such as outstanding fines for parking, are generally of no significance. More serious allegations, however, may be a cause for worry and may affect adoption hearings. Of course, previous allegations of child abuse or neglect preclude an individual from being an adoptive parent.

4. Adopter’s age requirements

In the adoption process, always keep in mind that you should be at least ten years older than the child you are adopting. This age gap is part of adopting a child in California according to their child adoption laws.

5. Complete Home Study Examination

If you are planning to adopt a child in California, you must conduct a home study examination. This criterion for the adoption process and child adoption laws exists to show that you can provide the child with a secure, caring family and a peaceful environment. 

Also, the social worker appointed to your case will help you consider what sorts of choices could be better for your family, address your needs, and assist you in planning for the adoption process.

During the home study investigation, you will need to:

  • Submit your fingerprints
  • Subject to a physical test (A doctor’s note stating that you do not have any life-threatening or life-shortening diseases)
  • Attend lessons of an adoption school
  • Complete at least one separate social worker interview
  • A minimum of two trips to your home to see you and the child
  • Verification of working status and income.

Get Legal Assistance to Help You Meet California Adoption Requirements

Over the past 28 years, our partners at Azemika & Azemika have all successfully handled the most difficult and high asset family law cases in Kern County and we can help you, too. 
We are family law specialists and we understand that each case is as unique as the clients we represent. For comprehensive representation in the adoption process, contact us today.

Setting Aside Family Law Judgements in Kern County

Setting Aside Family Law Judgement in Kern County and child custody attorney bakersfield ca

Divorce or legal separation proceedings are already emotionally taxing on the involved parties, especially when a verdict is unfair. Setting aside family law judgement is a particularly complex process that you cannot handle without an experienced family law attorney.

The Code of Civil Procedure and Family Code has many applicable laws you will need help navigating. An easy way to avoid this situation entirely is by contacting an attorney before you sign any agreements but, assuming you are already in an unfavorable position due to a signed settlement, we will address your options at that point. 

This legal guide will help you understand the process of setting aside judgments and will help you understand how the process is started. 

How Do I File A Set Aside Order in Kern County, California? 

So you signed a settlement agreement in your divorce or separation case, and now you think there is something legally incorrect about it. First, you will need to establish legal ground for your order. Your attorney can assist you in this process. An attorney can scan the agreement and establish permissible legal grounds for your set aside order.

It starts with an RFO. 

After speaking with an attorney and establishing your legal footwork, you will need to file an RFO or a Request for Order. This document is the first part of the process for setting aside a judgment. It contains certain forms and other pleadings. In the RFO, you will address what relief you are seeking and why. Additionally, you can file another declaration that sets forth your testimony as to why the judgment should be set aside. You and your attorney will need to write it on a pleading paper, sign and date it.

You have to file the RFO in the same court which reached the initial judgment in your divorce or separation case. The standard recommendation is that you file a Points and Authority for your motion when trying to set aside a judgment in a family law case. 

What Law Can I Cite For My RFO? 

What laws you reference in your RFO depend entirely on your legal argument for a set-aside judgment motion. In family law, a common procedure for arguing against the judgment is under Civil Procedure 473(b) which is seeking relief from the judgment against you due to your or your attorney’s mistake, excusable neglect, inadvertence, or surprise. If you are claiming it under your own mistake or neglect setting aside judgment is at the court’s discretion. However, if it was a mistake made by your attorney, the court must grant you relief from the judgment. 

There are only two avenues that constitute a mistake or neglect when citing Civil Procedure 473(b) as the argument in your RFO. There is a mistake of fact and a mistake of law. These are defined as the following: a mistake of fact is when you believe the facts are different than what they actually are, and a mistake of law is to misunderstand the legal consequences of known facts.

You can apply a claim of surprise or inadvertence to your proceedings if you are placed in a situation to your detriment through no fault of your own. Considering surprise or inadvertence, the court assesses whether these occurred by determining if an average person under similar circumstances might have made the same error as you. 

Excusable neglect is applied to your pleadings if you suffer from a disability, such as mental confusion, certain illnesses, or if English isn’t your first language. 

How Much Time Do I Have To File My Motion?

You have six months to file your relief motion under Civil Code Procedure 473(b). It is important to note that when you are seeking to set aside a default judgment, the six month period begins from the entry of default, not the entry of judgment. Or in the case of citing your attorney’s mistake as the reasoning for relief, the six-month period begins from the entry judgment date. 

Regardless, It is important that you act fast if you decide to file a motion to set aside a judgment. Six months may seem like a long time, but legal proceedings can take months, not to mention the time it takes finding the right attorney for you.

Contact an Experienced Kern County Family Law Attorney

Setting aside family law judgement requires an attorney’s detailed expertise.
At Azemika & Azemika Law, we are dedicated to providing aggressive and knowledgeable service at an affordable cost. It is a fact that a breakdown in a relationship or marriage can be stressful and traumatic. With a combined total of over 42 years of experience in Family Law Matters, our partners are exclusively devoted to assisting our clients through these difficult times by restoring the peace of mind you and your loved ones deserve.

Am I Responsible for Debts My Ex Incurred After Our Divorce?

woman doing accounting when moving out after divorce and paying spouse’s debt

One of the most common concerns for those faced with divorce is how their financial situation will be handled and affected by the separation. Among those queries is the issue of whether or not one is responsible for debts incurred by one’s spouse during the divorce.

And, most often, the answer is: It depends.

As a general rule of thumb, the state of California does not hold a person incumbent for any debts that their spouse has incurred after the separation. However, there are exceptions to this rule, which are dependent upon two factors: What the debt was for and when the debt was incurred.

In most divorce cases, a spouse’s debt can be determined to fall under one of the following three categories: Common necessaries of life, necessaries of life, and non-necessaries.

Common necessaries of life are described as essentialities, items, or services that are necessary for all people and families to sustain a fundamental standard of life. This includes items such as food, clothing, shelter, and basic healthcare.

Meanwhile, necessaries of life, though similar to common necessaries of life, are inclusive of necessities that are unique to a specific individual’s standard of living and age as well as other factors such as family, career-related, or locational circumstances. This includes items such as equipment or computers, which may not be required for all people to live, but are necessary for someone to sufficiently carry out their business 

Finally, non-necessaries are items or demands that do not fall under the first two categories and, for all intents and purposes, may be considered relative luxuries that are not required to sustain one’s life, business, or socioeconomic status.

As for when the debt was incurred, there are two crucial moments you must be mindful of during your divorce proceedings. The first is the time between the date of your separation and the date you enter your judgment of dissolution. The second is the time after you enter your judgment of dissolution.

Depending on multiple factors, you may be responsible for debt incurred by your spouse during the period between the date of your separation and the date you enter your judgment of dissolution if the debt was incurred to cover common necessaries or necessaries of life for your children. California Family Code section 2623(a) states:

Debts incurred by either spouse for the common necessaries of life of either spouse or the necessaries of life of the children of the marriage for whom support may be ordered, in the absence of a court order or written agreement for support or for the payment of these debts, shall be confirmed to either spouse according to the parties’ respective needs and abilities to pay at the time the debt was incurred.

To better understand this, let’s assume that, prior to the separation, you and your spouse enjoyed taking Pilates classes together just for leisure. After you begin your divorce filings, your spouse decides to go into debt to continue with their Pilates classes without consulting you or the court. In this case, even if your spouse insists that you pay for the classes, you are not responsible for any part of this debt, given that your spouse voluntarily chose to attend the classes despite it not being a common necessary of life or a necessary of life for them or your children.

On the other hand, let’s assume that, after the separation, your spouse lost their job and, with no savings or investments, they had to resort to loaned money to pay for food, clothing, rent, and essential utilities. If you are still employed and have a decent income, you are most likely responsible for the debt they have incurred in order to survive.

As for non-necessaries, the line seems to be fairly clear and self-explanatory. You are not responsible for the loan your spouse has taken out to purchase a new BMW or a cruise to the Bahamas.

Now, once the court has entered a judgment of dissolution, you are no longer responsible for any debts your spouse has incurred regardless of what it was for. The debt becomes the sole responsibility of the individual. California Family Code section 2624 states:

Debts incurred by either spouse after entry of a judgment of dissolution of marriage but before termination of the parties’ marital status or after entry of a judgment of legal separation of the parties shall be confirmed without offset to the spouse who incurred the debt.

Simply put, this means you are free at last from your spouse’s financial burdens.

Going through a divorce can be an extremely straining experience mentally, emotionally, and financially for all parties involved. After all, it is a process of terminating a social contract during which many confusing moments will inevitably arise. While you may always be able to find clear answers, being cognizant of your legal realities can help alleviate the pain and make the process a little less daunting and more manageable.

Furthermore, it’s important to always remember that you don’t have to go through this process alone: The Law Office of Azemika & Azemika is prepared and eager to aggressively advocate for your interests and bring you the peace of mind you and your family deserve. With a combined total of 56 years of experience handling and winning family law cases in Kern County, our attorneys will guide you through the tedious details surrounding division of property, commingling, and other contentious areas of California divorce law.

Contact us today and let us fight for you.

Father’s Timeshare for Child Support Is Zero Despite Mother’s Interference with Father’s Visitation

sample case about legal custody of Child and child support in california

In a partial reversal, a California Court of Appeals has ruled that a Trial Court was wrong by attributing extra unsubstantiated timeshare to Father to compensate for Mother’s alleged interference with and prevention of Father’s visitation with Child. According to the Appellate Court, actual timeshare must be used in calculating child support, which is not affected by one parent’s deprivation of other parent’s visitation rights.

In the case of County of San Diego v. P.B., Mother and Father were married in 1998; their Child was born in September 2001. In 2006, Mother filed for divorce. Child custody, child support, and visitation became issues of ongoing contention and dispute. Mother and Father had joint legal custody of Child, but Child lived with Mother, and Father had a fifty percent (50%) timeshare.

In 2011, “an incident at a restaurant” caused Father’s timeshare to change from fifty percent (50%) to supervised visitation only. From October 2014, through July 2015, Father had a twenty- nine (29%) timeshare. Meanwhile, in September 2014, Mother filed a motion for increased child support and determination of arrearages in the Family Support Division.

In October 2015, a family court services counselor prepared a report regarding the custody dispute. That report stated that the 2011 incident had caused Child to be seriously afraid of Father and to not want anything to do with Father. The counselor reported Father’s claim that Mother made false accusations against him that detrimentally affected his relationship with Child. Child told the counselor that Mother had told him about examples of Father’s bad parenting in Child’s childhood, but he had no independent memories of them. The counselor concluded that Child was “emotionally stunted” and could not “psychologically see himself as a separate person from his mother.” Child’s memories of the restaurant incident served to validate Mother’s views of Father and made Child oppose any efforts to reunify with Father. The counselor recommended that Mother and Father have joint legal custody of Child, with sole physical custody to Mother and no parenting time for Father.

In September 2016, Mother and Father stipulated to a final custody order that provided for Father and Child to begin reunification therapy, and that after 60 days, Father could have increased parenting time up to fifty percent (50%) unless Child’s attorney or the reunification therapist opposed it on the basis of Child’s best interests. However, reunification therapy did not go well (Child threatened suicide and was taken for hospital evaluation). Father then filed a motion to modify custody, based on Mother’s having “brainwashed” Child and her determination to keep Child and Father apart. As to child support, Father’s attorney argued that Trial Court should attribute a fifty percent (50%) timeshare to Father, per parties’ stipulation, because of Mother’s efforts to thwart visitation. Trial Court made no finding of visitation interference by Mother, applied a zero timeshare, and ordered Father to pay $819 per month for child support, retroactive to October 1, 2014. Trial Court remarked that it might use another timeshare if it found that Mother had interfered with Father’s visitation.

In March of 2017, Father submitted a declaration contending that Mother interfered with his visitation time and failed to support his reunification therapy with Child. At a hearing on child

support in the Family Support Division in May of 2017, Trial Court made an interim order, based on allegations of alienation in the custody dispute, wherein it found that timeshare was 50/50 and ordered no child support. Trial Court reasoned that it would be inequitable to permit Mother to ignore or interfere with the stipulated timeshare and then seek added support on the basis of increased timeshare. Mother objected on the basis of California Family Code Section 3556 [enforcement of child support order not affected by custodial parent’s refusal to permit visitation].

At the next hearing in September 2017, Mother told Trial Court that Father and Child were undergoing conjoint therapy, but Child still refused any visitation with Father. Trial Court updated its interim orders, set child support at $286 per month from October 2014, through July 2015, using a 29% timeshare. For the period from August 2015, through December 2016, Trial Court used a 2% timeshare and ordered child support of $817 per month. From January 2017, forward, Trial Court set timeshare at 2% and child support at $892 per month plus back child support of $200 per month.

At a custody hearing in December 2018, Trial Court noted that Father had had no contact with Child, except for therapy sessions, since August 2015, and their estrangement was virtually total. Trial Court found it unclear that Mother had caused the estrangement, but recognized that Child was then 17 years old, which made a reconciliation highly unlikely. It cautioned Father that estrangement was not a defense to paying child support. Trial Court concluded that Mother and Father would have joint legal custody of Child, with Child to reside primarily with Mother and visit Father only by mutual agreement.

At a final hearing on child support, Family Support Division Trial Court commented that the evidence seemed to show that Mother’s actions were largely responsible for the estrangement between Child and Father and that the estrangement constituted a special circumstance. In a final child support order issued on January 18, 2019, Trial Court made no change to existing support order for the period of October 1, 2014 through July 31, 2015. For the period form August 1, 2015, through December 31, 2016, Trial Court attributed a 29% timeshare to Father and ordered $529 per month for child support. For the period from January 1, 2017, through October 31, 2017, Trial Court attributed the same timeshare, despite no visitation, and ordered Father to pay $649 per month. From November 1, 2017, forward, Trial Court applied a zero timeshare and ordered Father to pay $970 per month. Trial Court acknowledged Mother’s contributions to the estrangement.

Claiming that Trial Court erred by attributing extra timeshare instead of actual timeshare, Mother appealed Trial Court’s ruling, and now California Court of Appeals has reversed Trial Court in part and remanded the case back to Trial Court for further proceedings. According to the Appellate Court, (1) Trial Court stated no valid legal or factual basis for attributing extra timeshare; (2) Trial Court may not modify child support as a means of coercing custodial parent into compliance with custody orders; (3) Trial Court’s method of calculating child support was “tantamount to withholding child support” and was inconsistent with applicable law; and (4) Father’s parents’ payments for Father’s legal fees do not qualify as recurrent monetary benefits that are available for child support calculation. The Appellate Court has reversed the child

support calculation for time period from August 2015, through October 2017, and has remanded the case back to Trial Court for recalculation based on Father’s actual timeshare.

How Does Divorce Affect Health Insurance?

legal document about health insurance after divorce and income tax dependency waivers

During a divorce or legal separation, there are many considerations to keep in mind, like child custody, property division, and alimony/spousal support – but what about your health insurance?

Many couples forget to take into account the ramifications of divorce on their health insurance. Learning how your health insurance is affected by California divorce laws will help you be better prepared, both while going through the process of divorce or legal separation and for steps you may need to take after your divorce or legal separation is finalized.

Can One Spouse Terminate The Other’s Health Insurance During Divorce Or Separation Proceedings?

In many marriages, one spouse is covered by a health insurance policy that the other spouse receives through his or her job. This coverage extends to both the spouse and children, and during a divorce, the spouse who relies on that health insurance risks gaps in their coverage.

However, when a California divorce case is filed, immediate Automatic Temporary Restraining Orders (ATROs) are issued. ATROs are provided for under Family Code section 2040(a)(3) and they affect both parties’ health insurance policies in their ability to cancel coverage and change the beneficiaries of that insurance policy. That means one spouse may not remove the other from the policy or alter coverage, especially if the policy is employment-related coverage. These restraining orders protect the spouse and any dependents from gaps in coverage until final judgment in the case is granted.

If I’m On My Spouse’s Health Insurance, What Happens To My Coverage After The Divorce Or Separation Is Final?

The ex-spouse is no longer considered a “family member” under California family law, which means you will lose dependent status under your spouse or partner’s health insurance and will no longer be eligible for coverage under that plan. This means you may suffer a gap in coverage. It’s possible, under Family Code §2051, to continue your existing health insurance after divorce if negotiated and agreed upon during divorce proceedings. Azemika & Azemika Law can help you navigate this process. 

Children, however, remain legal “family members” and are therefore unaffected by changes in health insurance coverage unless the spouse with the insurance policy loses all parental rights.

What Protections Or Options Are Available Once I’m No Longer A Dependent On My Spouse’s Health Insurance?

In some cases, the insured spouse may be ordered to make a payment to the uninsured spouse specifically for health insurance coverage. This is more common if the uninsured ex-spouse is the custodial parent of a minor(s).

For a limited period of time (usually 18 months), the uninsured spouse may retain health insurance coverage through COBRA, the Consolidated Omnibus Budget Reconciliation Act. COBRA requires health insurance plans to offer continuation coverage under specific circumstances that would otherwise result in termination or reduction of plan benefits. This can give you enough time to secure your own health insurance plan without suffering a coverage gap. Your spouse’s employer is not required to subsidize your insurance, but they can charge you 102 percent of the cost. This is obviously quite expensive, so it’s a good idea to shop around marketplaces like Covered California for equivalent individual coverage through another plan.

If you do choose COBRA coverage, you can stay on that plan for up to three years if your former spouse or partner continues to work at the company and certain other conditions are met.

Some state and federal laws offer additional protection of health insurance benefits. Azemika & Azemika Law can help you find the best option to protect yourself and your loved ones.

What Are My Responsibilities If I Have To Remove My Spouse From My Health Insurance Policy?

If your insurance policy will no longer provide your ex-spouse’s health insurance after divorce or separation, you are responsible for notifying the plan administrator within 60 days after the date of entry of judgment of your divorce or legal separation.

How Does Legal Separation In California Affect Health Insurance?

Some couples choose legal separation instead of dissolution of marriage in order to avoid one spouse losing health insurance coverage. However, most health insurance plans treat legal separation in California the same as dissolution of marriage, meaning that one partner is no longer considered the dependent of the other for the purposes of health insurance coverage.

If your partner has a government health insurance plan, you may be able to remain a dependent, but this must be confirmed with the plan. If you do find yourself facing a coverage gap, COBRA, as discussed above, is an option for continuing health insurance coverage after separation is finalized.

Azemika & Azemika Law Is Here To Help You

Azemika & Azemika Law specializes solely in California family law services. Over the past 22 years, our partners have successfully handled the most difficult and high asset family law cases in Kern County. Our Bakersfield divorce lawyers can help you navigate California divorce laws to protect your financial stability and your loved ones. Don’t let stress and uncertainty over your future health insurance coverage add to the already difficult emotional toll of this phase. Let Azemika & Azemika help you find customized solutions to every aspect of your divorce case, including how health insurance coverage is handled, and set you on a path to a better future. Contact us today online or by calling (661) 322-8166

Divorce and Division of Property

kern county family law for Division of Property in California and claim of domestic violence

When a couple decides to divorce or legally separate, there are many critical issues they must address. One such issue is the division of property and marital assets.

Determining who gets what is often one of the most stressful parts of a divorce. Because the division of marital property can be such a tense issue, understanding California divorce laws can help you be prepared and ensure your rights are protected.

Distinguishing Marital Property and Separate Property

To determine the division of property in a divorce, there are two types of property that must be established; marital property and separate property.

California is known as a “community property” state, meaning that all property, assets, and debts acquired during the marriage are considered marital property, and are subject to an equal division between spouses or domestic partners if they divorce or legally separate.

Separate property refers to any property one spouse owned before the marriage or acquired by gift or inheritance during the marriage. It belongs to the individual spouse and is not typically divided in a divorce.

Separate property also usually includes items purchased with or exchanged for separate property, earnings on separate property, and any increase in the value of separate property, as long as the owner can verify the claim with financial records.

California law also states that property spouses acquire before a divorce is finalized, but any property acquired after the date of separation is considered separate property.

To clarify, the date of separation is not necessarily the date one spouse moves out of the marital home. Rather, it is the date that one spouse decides to end the marriage and it requires some act of physical separation combined with other actions clearly showing that the spouse has decided to end the marriage.

The date of separation can be a big issue in cases where one spouse earns or spends a significant amount of money right before the divorce. If a couple is unable to agree on a date, a court will decide after considering all the evidence.

Changing Separate Property Into Marital Property

Marital property and separate property can change from one to the other through a process known as transmutation. There are several ways this can happen.

First, a couple can agree, before or during marriage, to change an asset that was originally separate property into marital property, or vice versa.  A simple change of the title for the property is not enough. These agreements must be in writing and must clearly state the intention of the parties.

It is also possible for a spouse to unintentionally convert a separate asset into a marital asset by “commingling” separate property and marital property together. For example, a premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits into it or a house owned by one spouse alone can become marital property if both spouses pay mortgage or other expenses.

There are many types of assets that can be partially marital and partially separate including retirement accounts one spouse contributed to before and during the marriage, or a business one spouse started before marriage and continued running after marriage.

Distinguishing marital property from separate property can be rather complicated, especially in situations where there is a lot of commingling involved or one spouse owns a business. Couples who cannot decide what belongs to whom will have to let a court determine whether the commingled property should be considered marital or separate.

Determining Property Value

During the division of property in a divorce, the spouses will usually assign a monetary value to each item of property. If the spouses are unable to agree on an item the court will determine its value.

Naturally, some items are more challenging to value than others. You may need professional assistance to determine the value of antiques, artwork, or retirement accounts.

Division of Property in California

California divorce laws require that the net value of the marital assets be split equally between both spouses.

Spouses can divide assets by assigning specific items to each spouse, allowing one spouse to “buy out” the other’s share of an asset, or by selling assets and dividing the proceeds.

Divorcing couples can also agree to hold property together even after the divorce. This is most common with spouses who want to keep a family home until their children are out of school.

The spouses must also assign all debts accrued during the marriage including car loans, mortgages, and credit card debts to one of the spouses. You should be aware that a divorce or separation agreement is not binding to creditors. This means they may continue to collect any jointly owned debt from either spouse even after the marriage is over.

If the court assigns a debt to one spouse, the other can request the court to put a lien on that spouse’s separate property as security for the payment of the debt.

Contact Azemika & Azemika Law

If you are going through a divorce and are unsure how your assets will be divided, Azemika & Azemika is here to help.

For comprehensive legal counsel on your options during your divorce or legal separation, contact Azemika & Azemika, Kern County Divorce Attorneys. We will provide the guidance and representation you need to ensure your rights are protected.

Moving Away: California Child Custody and Relocation

Moving Away California Child Custody and Relocation | child support lawyers in bakersfield ca

Divorce is a tough and emotionally painful process to go through, and when there are children involved, the stakes only increase. What happens when a custodial parent wants to move away with their child in tow? How do you contest it or defend it? 

Having a divorce attorney can help you navigate these grey areas to the letter of the law and  determine the best course of action for you and your family. 

What Constitutes ‘Custody’?

Before we can discuss moving away, it would be helpful to clarify what custody means, and the different kinds of custody a parent or caretaker can have.

When a couple divorces, they reach an agreement on where their children will live and how visitation works between the two households. If a decision can’t be reached, a judge will determine what is in the child’s best interest. From there, custody can be unique based on the conclusions reached by the court and the couple.

Physical Custody

This determines which of the parents the child in question will live with. This is the ‘custodial’ parent, and they have the specific right to have their child in their home. The other parent is the ‘noncustodial’ parent, and although they have visitation rights, they have more limitations than the custodial parent.

Sole or Joint Physical Custody

Joint physical custody” occurs when parents both spend equal time with their child, such as having the child on school nights versus having them on weekends. 

However “sole physical custody” is when the everyday care and nurturing of the child falls to one parent, while the other works within their visitation rights. 

Legal Custody

This refers to whichever parent can make legal decisions for the child. They’re the one who has the final say in regular healthcare, school and education, and religious decisions. 

Joint or Sole Legal Custody

In California, both parents receive joint legal custody for their child unless one parent is deemed unfit to make the necessary decisions, if it’s in the best interest of the child for one parent to make the legal decisions, or if the parents cannot get along to make these necessary choices. 

If this is the case, then the parent deemed fit would have sole legal custody.

Is A Custodial Parent Allowed To Move Away With A Child? 

The custodial parent is allowed to move away with a child as long as this move won’t interfere with the child’s best interests. 

A noncustodial parent in a joint custody situation would need to have an adjusted court order to move out of state with their child. 

Providing Notice and Altering Court Order

In order to move out of state with the child, the custodial parent must provide a written moving away notice if they will be away for more than 30 days. This notice must be sent at least 45 days prior to the move so that both parents can work out their new custody agreement. 

However, if the noncustodial parent disagrees with the move, they can file an objection and request that the court modify the custody as it currently stands. 

What Happens In Court During A ‘move-away’ Situation?

Don’t be caught unaware by what goes on in court, a family law attorney can help get everything in order for this proceeding.

The Hearing

If one of the parents objects to the move, there will be a court hearing to determine if the move is unsafe or not in the best interest of the child. A judge will schedule this meeting in order to make a ruling on any custody changes or allowances. 

Just because a move will be hard on a child doesn’t mean that custody will be adjusted. The noncustodial parent needs to prove that the child will be negatively impacted in a detrimental way by this move. Similarly, in a joint custody disagreement, the custodial parent will need to prove that this change will be in the child’s best interest. 

Factors to Consider 

A court, while determining whether a move is in a child’s best interest, will consider the following factors: 

  1. The child’s current need to maintain continuity, stability, and security.
  2. How far away this move is from the current location.
  3. If there’s a risk of harming the child during the change in custody.
  4. How this move will impact the relationship of the child with both parents.
  5. If moving will negatively impact the child’s relationship with the nonmoving parent.
  6. Why the custodial parent has decided to move.
  7. The parent’s relationship with one another and if they are able to communicate in a civil manner.
  8. How the child’s educational, physical, and emotional needs will be satisfied by this move. 
  9. If there is an extended family for the child in either location. 
  10. Anything else the court decides should be considered in the move-away case. 

You Don’t Have To Face Divorce Alone

A ‘move-away’ order can turn an already difficult divorce into an even more complicated situation. But you don’t have to find your way out by yourself. Kern County family law attorneys Azemika & Azemika can help you and your child move forward and move on with your lives. 

At Azemika & Azemika, we understand family, and are willing and ready to be your rock in this trying process. Contact us now if you or a loved one are considering beginning the divorce process or are facing a ‘move-away’ order. We’ll fight for you and your family.

How Does Legal Separation Work in California?

paper cut family showing divorce mistakes and terminating parental rights

Even though they share some similarities, legal separation and divorce are not the same thing. They both involve the couple living apart from one another with a specific legal agreement in place but legal separation does not completely dissolve the marriage like a divorce does.

In this article, we will detail how legal separation works in California, and when it might be the right choice for you.

What is Legal Separation?

Legal separation requires court-appointed agreements to be put in place, just like a divorce. The couple and their lawyers must reach agreeable negotiations that will be filed with the court. In a legal separation, the marriage is still intact, but with stipulations.

A legal separation agreement will take on all of the issues that are covered during a divorce proceeding. 

Both spouses need to agree to a legal separation in the State of California in order for it to take effect. If your spouse does not agree, you may have to file for divorce.

Pros of Legal Separation

Deciding to go down the path of legal separation is a personal decision that only you and your spouse can make, and you should put considerable thought into the decision.

If you are considering a legal separation, you should always seek the guidance of a skilled attorney who specializes in divorce and legal separation

For many people, legal separation is the first step to a final divorce. Reasons such as tax benefits and religious convictions can inspire a couple to become legally separated before deciding to completely dissolve their marriage.

Many times, a couple will determine that they may not be able to remain under the same roof, but they have a good reason not to divorce either.

Here are some reasons why you should consider legal separation:

  • You and your spouse will continue to receive health insurance from the subscriber’s plan. 
  • You and your spouse will still continue to benefit from federal tax breaks for married couples.
  • There is still a possibility of reconciliation. With a legal separation, you and your spouse can still decide to keep your marriage intact after some time apart. Many couples go to marriage counseling during a legal separation.
  • You or your spouse may not believe in divorce due to religious convictions.
  • You might be financially unstable and staying legally married will help with living costs. 
  • If you or your spouse are eligible for the other’s social security benefits. This sum of money increases after ten years of marriage.
  • You aren’t ready to negotiate a full-blown divorce agreement. Legal separation will protect your rights and financial interests while you decide if divorce is the right decision. 
  • If you plan to stay separated on a long-term basis, a legal separation agreement will keep your interests legally protected.
  • Legal separation covers all the issues covered in a divorce. This includes child support, custody, asset and property division, marital debts, and spousal support.

California Residency Requirements and Exceptions

Certain residency requirements must be met to get a divorce in California. At least one spouse has to be a California resident for at least six months and a resident of the county where the divorce is filed for at least three months. If both spouses have lived in California for at least six months but have lived in different counties for at least three months, then either spouse can file in their respective county. 

Couples who originally registered their domestic partnership in California do not need to fulfill any residency requirements to get a divorce. They can get a divorce regardless of where the partners are living. However, if their domestic partnership is registered in a state other than California, they will need to meet the same residency requirements as married couples. 

If neither spouse/domestic partner can meet the residency requirements, one of them can file for a legal separation and then file for a divorce after the residency requirements are met.

California Grounds for Legal Separation

California courts do not require either spouse to show fault in order to get a legal separation or divorce. It is a “no-fault” state, where one spouse just needs to allege that the couple has “irreconcilable differences” and that the marriage is no longer sustainable. “Irreconcilable differences” means that there are substantial reasons for the marriage to be dissolved.

To obtain a legal separation on this ground, both parties must agree. This requirement gives the responding party the ability to prevent the legal separation. 

Contact Azemika & Azemika Law for More Information on Legal Separation

Deciding to proceed with legal separation or divorce can be stressful. It is important to have a knowledgeable, experienced attorney at your side. At Azemika & Azemika, we are here to support and guide you through this difficult time. We are well-versed in the areas of legal separation and divorce, and we will fight for you and your family.

Contact us today to learn how we can protect you and your rights during the separation and divorce process.