Roseville Family Law Blog

One of the most difficult questions to answer in any California divorce is the treatment of accumulated benefits in retirement plans belonging to one spouse or the other. If the benefits are fully vested, that is, the spouse who earned the benefits owns 100% of all benefits to which he or she may be entitled, the couple can include the fully-vested amount in their calculations of the property division. But what happens to benefits that are not fully vested?

A California Supreme Court decision in the case In re: Marriage of Brown, from 1976 has cast a long shadow over division of pension plans ever since the decision was handed down. The court began its analysis by observing that courts must divide accrued but not vested retirement benefits equally between the divorcing spouses.

California laws contain several remedies for women whose ex-husbands do not pay child or spousal support. The state has an agency that helps locate ex-spouses and assists in seeking court enforcement of an existing order for child or spousal support. Unfortunately for women of an earlier generation, these remedies did not exist, and many women were forced to get along without the support payments that had been ordered by the court. One California woman who found herself in that situation was able to find her former husband and persuade him to pay what he owed her. She was successful in recovering child support payments from her ex-husband 50 years after they had been divorced.

The woman and her husband were divorced in the 1970s, and he was ordered to pay child support for their 3-year-old daughter. The woman took the first support check in the amount of $160 to the bank, and it bounced. The husband then failed to make the next support payment. Weeks became months, months became years, and the woman lived and raised her daughter without receiving a single dime of support. The woman told a reporter that she struggled a lot and was forced to work two jobs at once to earn enough to support her and the child. Then she had a life-changing insight: California law does not have a statute of limitation for support payments.

Most divorcing couples in California choose to live apart while the divorce is pending. Living apart may reduce the level of acrimony, but it may also cause financial headaches for one or both of the parties. For this reason, California courts are frequently asked for and frequently issue orders for spousal support during the pendency of the divorce, otherwise known as temporary alimony.

A party who wants the other spouse to pay alimony during the divorce process must make a motion to the court for such an order. The moving party must demonstrate the existence of circumstances that justify the order. The court will first examine the age, physical condition and financial condition of the parties. Each spouse's earning ability will also be taken into consideration. Another important factor is the standard of living that the couple enjoyed during the marriage. If the couple enjoyed a high standard of living while they were together, the court will endeavor to set temporary alimony at a level that allows both spouses to approximate this standard. In this regard, the court will take into account the ability of each spouse to be self-supporting. If the couple owns real estate other than the family home, the court will endeavor to ensure that one or both parties are able to contribute to the maintenance of the property.

One of the most important legal concepts in California divorce law is embodied in the phrase "best interests of the child." Whenever a divorcing California couple has one or more minor children, issues such as child support, child custody and visitation will be resolved based upon the court's judgment about how a proposed solution will affect the best interests of the child. Any parent who is facing a potential divorce may wish to become familiar with the factors that determine a child's best interests.

The phrase can be difficult to define, but several factors are included in almost every judicial formulation of the test. The age and sex of the child are critically important. The court will also listen to the child's preferences if the child is old enough to capably express an opinion. The mental and physical health of each parent is also a crucial factor. If a child has special needs, the ability of each parent to attend to those needs will be included in the calculation. Religious and cultural considerations are also important.