California Family Law
Child Custody
Family Code Section 3022 provides the court with authority to make an order for the custody of a minor child that seems necessary and proper during the pendency of a proceeding or at any time thereafter. California family law courts use Family Code Section 3040 to establish the order of preference in granting custody in divorce actions. The first section of this code provides that “Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020.”
Parties involved in a custody dispute would be wise to review Family Code Sections 3011 and 3020. After all, since these two sections outline the criteria that California judges use when determining custody disputes, parties to such actions should consider what facts apply to these code sections. If there are facts that do not apply to the criteria that judges use, they may not be relevant. Focusing on irrelevant facts may distract the Court from focusing on relevant facts that will help carry the day. Attorneys who exclusively practice in the area of family law will know how to take unique facts of individual custody disputes and demonstrate to the Court how those facts apply to the factors found in Sections 3011 and 3020.
Spousal Support
There are two types of spousal support payments in the State of California: temporary spousal support and long-term spousal support.
California courts have consistently maintained that the duty of the court in establishing temporary spousal support is to render a fair and appropriate order to reflect parties’ financial circumstances at or near the time of separation. In most cases, the dissomaster, a computer program used by the Los Angeles County, calculates spousal support status by simply plugging numbers into a guideline calculation. This really does away with much of the court’s discretion and an attorney’s ability to advocate. In some cases, however, the use of the dissomaster can render unfair and inappropriate support orders, thus necessitating the trial court’s intervention. For decades, the courts have consistently upheld and promoted the trial court’s exercise of wide discretion when rendering a temporary spousal support order. In re Marriage of Dick (1993) 15 Cal.App. 4th 144, 165. While exercising said discretion, courts can be called upon to look away from guideline formula calculation, and instead focus on relevant and equitable facts presented in the case at hand. In re Marriage of Dick (1993) 15 Cal.App. 4th 144, 160-165; In re Marriage of Burlini (1983) 143 Cal. App. 3d 65, 70.
Long term spousal support orders are usually rendered at the end of the case. It can be ordered based on stipulation of the parties or judicial determination. If the court is called upon to make a determination, it must utilize and consider each of the factors outlined in Family Code Section 4320. One of these enumerated factors is the standard of living established during the marriage. Although other factors may exist, case law has recognized that the standard of living established during the marriage is the threshold mark or reference point by which all other factors are measured. In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1560. This is a fact driven analysis by the court. The 4320 factors include, but are not limited to, income, assets, expenses, marital standard of living, etc.
Business Valuation & Division
Business valuation can be best described as an exercise in creative accounting. In determining a business value, California courts generally utilize an excess earnings method. This method involves a two-step process. First, the court looks to the tangible assets of the business. Assets encompass anything from furniture, automobiles, and even accounts receivables that have yet to be collected. Discounts can be given for various factors (i.e. depreciation, collectability of an account receivable). Second, the court looks to the goodwill of the business. Goodwill generally involves an analysis of business earnings (salary + perquisites) multiplied by a capitalization rate. The capitalization rate usually depends on the type of business and its stability, or lack thereof. Once the net asset and goodwill figures are determined, the court will usually end up adding the two figures.
California case law has held that only a business can have goodwill. If one is not engaged in a business, then there can be no goodwill to divide. In the 2005 California case of Mctiernan vs. Dubrow, husband, John McTiernan, a famous Hollywood director (Die Hard, The Hunt For Red October) successfully challenged a lower court’s ruling regarding the nature of his activities as a movie director. Once he was able to demonstrate that his activities were not akin to a business, the court of appeals held that goodwill could not possibly be attributed to his activities. Consequently, there was nothing to divide! This is an intense fact-based analysis. If you wish to prevail using a Mctiernan argument, be ready to put on your evidence.
Property Transfer During a Marriage
Under California Divorce law, a valid transmutation is a written agreement to change the ownership characterization of a property. In order to comply with the law, said the agreement must satisfy the requirements of Family Code Section 852. California Divorce Law takes changing property ownership during a marriage very seriously. The legislature (the people who create the code sections we follow) does not want anyone to slip into a transmutation. Transparency is the name of the game. Trickery does not belong here!
Civil Discovery in Family Law
The Civil Discovery Act applies to Family Law proceedings. The Civil Discovery Act, as provided for in the California Code of Civil Procedure, helps prevent improper gamesmanship and “gotcha” litigation. In responding to formal discovery, the code requires parties to follow basic rules in providing clear and concise responses. Each and every section dealing with discovery demands outlines the process, the consequences of untimely and evasive responses, and provides the propounding party an opportunity to seek enforcement. When a party seeks to circumvent this process by failing to provide proper code compliant responses, the Court has wide discretion and authority to render appropriate orders to remedy the situation.
Mandatory Disclosure in Family Law
Family Code Section 721 (b) provides in pertinent part that, “a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other,” and that the fiduciary relationship “imposes a duty of the highest good faith and fair dealing on each spouse”. Among other things, the rights and duties of spouses in a fiduciary relationship include “rendering upon request, true and full information of all things affecting any transaction which concerns the community property”.
If a party fails to comply with section 721, the court shall, in addition to any other remedy provided by law, impose money sanctions against the noncomplying party. Sanctions shall be in an amount sufficient to deter repetition of the conduct. Family Code Section 2107 (c).
Call Our Family Law Attorneys Today
Our dedicated Pasadena divorce lawyers at Baghdaserians Law Group have handled family law cases throughout the great state of California. Over the past few years, we have represented clients in the counties of Los Angeles, Orange, Ventura, Riverside, San Bernardino, San Mateo, and Alameda.
We have never shied away from a challenge. Quite often we have taken cases that were deemed too complex or contentious by our colleagues and were ultimately referred to our office. We take great pride in knowing that our competitors are referring to their complex cases for us to take on. Most recently, we successfully challenged a trial court’s ruling on the issue of real property characterization and division. In 2019, this decision was published by the California Court of Appeal, 2nd District, Begian v. Sarajian (2018) 31 Cal.App.5th 506. This was a case that was deemed “too close to call” by some of our colleagues. Undeterred, we moved forward and won, reversing an error made by the trial judge.
No case is too big or too complex for the Baghdaserians Law Group. We strive for excellence and thrive in the face of adversity. The Baghdaserians Law Group is committed to obtaining the results our clients seek. We will never compromise that goal. If you are looking for skilled divorce attorneys to handle your matter, call or email us for an immediate consultation.
