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“How Much Does a Divorce Cost?” I am asked just about every day. The answer is never a short sentence and the lawyerly response should be, “It depends!”

It is both foolish and impossible to place a fixed price tag on a divorce; any divorce. It is possible however to categorize divorces more or less into types and groups and thereby estimate—even though still not reliably—but roughly, into cost categories. filing fees and direct costs are mere obvious items associated with cost of a divorce.

It is possible to name factors that as attorneys we consider before estimating possible costs of a divorce case, and factors that can affect complexity as well as duration of the process. Also, some costs do not show themselves before we have become more familiar with facts involved. Discovery of certain facts can lead to great recovery or loss for a client and can certainly increase not just legal costs but determine whether you get a “fair deal” and based on your full legal rights, or obligations as the case might be.

By no means below named factors are exclusive. In fact, depending on how far we can get here, I might have an additional post on this topic.

Duration of Marriage: “How long have you been married”?

Again, no single factor is crystal clear in its extent of contribution to costs of litigation in a divorce. But, I always ask first about length of the marriage, because the answer can tell me what the next questions must be. I am not saying short marriage always mean simple divorces–not at all. Remember when Paul McCartney married the second love of his life Heather Mills? Mills met McCartney at a Pride of Britain charity event, and they were married on 11 June 2002. Mills gave birth to their child Beatrice Milly McCartney on 28 October 2003. Just as quickly, Mills separated from McCartney in 2006, which led to a highly publicized divorce in which Mills was awarded £24.3 million in a court settlement on 17 March 2008. A marriage of only about four years in duration led to an astronomical settlement. The expenses of such a divorce of course are high on both sides, but extremely costly here to one side compared to the other. But, the fact that the marriage had produced a child had quite a lot to do with it.  However, as a general rule, and absent other more influential factors, such as having children, or coming to millions when your company went public, the shorter the period of marriage, the less complicated the divorce should be. But, duration of marriage can become a very insignificant factor in light of events that have taken place during the marriage. When I ask a potential client how long they have been married, it is usually followed by do you have any minor children? Do you both work, and what is amount of the income of each party, etc. Asking about length of a marriage is a sort of “Gateway” question.

“Do you have any minor children”?

This is an extremely influential factor in a divorce. First of all, when I ask this question, it also takes care of whether there are now adult children who have moved on. Number of divorces past twenty years of marriage or more is not low or uncommon. But, if the answer is positive—one, two or more minor children—in a divorce; this gives the process a huge tangential direction; I personally know of no other factor as important, intricate, contentious or complex. There are those who would argue division of property is more complex in certain cases. Even so, the emotional and societal dimensions that issues related to rearing children in a divorce present are the most difficult I have dealt with. At the top of a long list of issues that having children presents looms the simple fact that a couple who has children together will never fully devolve away from each other and their lives by necessity will be entwined for years. Such couples must consider the fact that no one here will truly leave the past behind; and much more so than a couple who divorce before they have any children. I dare say when children are absent from a divorce in some cases a couple can truly move on and forget about most of what comprised their first or previous marriage. This is never the case where children are involved. Society has a great deal of interest here and our laws dealing with related issues thread very carefully and at least strive to do so.

“How much property is involved”?

Consider this: A couple marry young; when they each are earning about the same in income. They each drive a car with similar payments and have little credit card debt. They do not have any children and are living in a rental apartment. Maybe they have a small savings amount in a joint account, but no retirement plan or 401k; or if they have them they are yet to accumulate a high and valuable balance. What is there to divide? Not much really. Let us say for sake of example this couple does not get along after a few years—say four years—and they decide to divorce. If we discount other sorts of complications, and if the major factor is their property and debt division, this is a simple divorce.

Now, say the same marriage produces just a small twist. When this same lovely couple got married, the Wife was in 4^th year of college studying computer science. Immediately upon marriage, she was offered a job by a little known company at that time named Google and she was employee say number 25 (This is a fictional example!)—she is of course awarded a good number of stock options and depending on whether Google went public during this time, and vesting of the shares and so on, this could produce a major property division issue to deal with.

Other factors that come to mind are existence of Wills/Trusts and possibility of transmutation of separate property, increase in retirement plan values, real estate holdings, professional practices that require valuation, and the list goes on and on.

It is often not only prudent, but essential to hire a forensic accountant in cases where property subject to accounting is varied and complex in nature or has become so merely due to duration of time.

“Conflict: How much is too much?

An attorney who practices family law must always keep in mind that ultimately parties need to get on with their now divided and separate lives. While it is often absolutely necessary to fight for a client’s rights, it is just as important to educate them about what their rights are; hence what are the rights of the other party as well.

A party who aims to inflict pain on the other side at any cost is in the wrong and legally threading on thin ice, because the process does not in the end reward intolerance for the other side and gamesmanship for its own sake and devoid of sound legal goals.

To the extent that parties can manage a civilized discourse, they will pay less both in money and pains associated with a divorce. As an attorney, it is astonishing to me how often I explain this simple concept to my clients and they still are unable to manage and master their emotions. Other reasons for seeking “Conflict” over compromise is unrealistic expectations. It is again directly related to how well an attorney educates a client about the process. Of course, non of this should be mistaken with the genuine need to fight a good fight when nothing less will do the job. All too often my colleagues contribute to the overblown expectations of their clients and leave no choice but making use of the court and power of a judge to end the matter to conclusion.

Fortunately, it is accurate when I say most divorces do lead to a compromised settlement as they should and the rest, a minority number of overall cases, are perfectly fine and well suited for litigation and the inevitable court battle that is not always avoidable.

I will get back to this topic again one of these days, but I find the above the most obvious to consider when contemplating a divorce.

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When you get a divorce, how is it decided by a court that one spouse should pay money in support of the other? How much and for how long?

First, there are two stages in examination of “spousal support”, first is a “Temporary” state designed to roughly maintain the status quo at the time of separation so neither side theoretically suffers a dramatic loss in life style. Of course courts do understand that fundamentally this is usually a lofty goal since simply by splitting a single household the income that used to maintain one single family now is expected to support two; duplicating many costs associated with a life and life style. For example, a couple who separates and used to pay for a gardener taking care of the landscaping at their home theoretically could need two gardeners now post separation—to what extent can anyone, and for that matter the courts, decide how closely maintenance of status quo must be pursued with precision? The answer is that it is not—precision is not a practical goal as a public policy; we come as close as we can to what is our social idea of “fairness” can provide under the circumstances. Temporary spousal support is intended to “try” and maintain the status quo standard of living for both parties—that is the goal.

Still, while in majority of cases spousal support, also commonly referred to as alimony is awarded, in California it is not by any means mandatory in dissolution or legal separation proceedings to award this support. The courts have discretion (defined by statutory limits and guidelines of course) to grant, deny or limit spousal support in an amount and duration that reflects the ability of both parties to provide for their own life expenses and needs.

We also need to address question of duration and permanent status upon judgment of whether and for how long spousal support will be payable. The determination of a California alimony award issue in a court, whether to order it, in what amount and for what duration, is decided based on the “circumstances” of the spouses in the particular case, and assessment of their standard of living established during their marriage and their respective needs and abilities to pay. [Ca Fam §§ 4320, 4330(a)] The court is bound to consider 14 statutory factors in making a California spousal support order (Ca Fam § 4320(a)-(n)). But so long as the statutory factors are considered and weighed (as applicable in a given case), the ultimate decision–as to amount, duration and whether to retain spousal support jurisdiction–rests within the court’s broad discretion.

Whereas child support awards facilitate a uniform purpose (significantly, that children share in their parents’ standard of living, spousal support necessarily serves varying functions, depending on the parties and the underlying facts and circumstances. For that reason, the Legislature has not codified any particular purpose of the award.

The question of final and ultimate state of spousal support is a more complicated one. Amount and duration of the payments are subject to a rather complex assessment codified in California Family Code Section 4320 which as noted consists of over a dozen different parts and subsections which must all be considered when a court is asked to make a decision. Most cases are settled based on a private, or mediated assessment of these same factors and where parties can reach an agreement the matter is resolved and reduced to an agreement. In other cases the matter is left open and subject to modification at a time in the future when and if there is a “change of circumstances” that provide one side with a reasonable argument to request a change in the amount or termination of the amount altogether—there is no one size fits all when it comes to this.

The duration of spousal support is left to the sound discretion of the court subject only to the statutory guidelines and limits. Although the Code does not specify duration or specific termination, the courts tend to not favor “support.”

In evaluating the parties’ respective needs and abilities to pay, the court cannot engage in speculation. Its order must reflect the present facts and circumstances, based on evidence in the record and inferences reasonably drawn therefrom at the time of the hearing. “[A]n order for spousal support must be based on the facts and circumstances existing at the time the order is made.” [Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575, 7 Cal.Rptr.3d 594, 595]

In San Jose
Santa Clara Law Group
111 N. Market Street
Suite 810
San Jose, CA 95113
(408) 453-3500
FAX (408) 453-3900
info@santaclaralawgroup.com

In Santa Cruz
Santa Clara Law Group
289 Water Street
Santa Cruz, CA 95060
(831) 466-6766
FAX (408) 453-3900
info@santaclaralawgroup.com

DISCLAIMER: The information contained in this web site and its associated web sites is provided as a service to the Internet community, and does not constitute legal advice. We try to provide quality information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site and its associated sites and we make no claim that any of the free forms contained in this web site are appropriate for your particular needs.

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As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent counsel.

One of the most crucial questions I ask a potential client when the call for a consultation is whether they have any children of the marriage they are calling about. This is because having children in a family that is going to go through a divorce process is drastically different than a marriage with no children. For one thing, children present all sorts of issues and problems that need to be dealt with which are completely unique. The issues related to children in a divorce include but are not limited to making sure client understands the difference between “Legal” and “Physical” custody, understanding impact of “timeshare” with the child or children on “Child Support” amounts and who will pay and who will receive support, to standard that the court shall apply in making decisions parents many times fail to make on their own; namely “the Best Interest of the Child” standard.

The applicable laws and rules to Child Custody and Visitation in California are codified as most modern laws; in a body of statute which have arisen out of a history and tradition of Common Law, seminal cases, and public policy legislature deemed beneficial by the legislature over decades and indeed some over centuries.

Below are selected most prominent California Family Codes related to issues dealing with children in a California Divorce.

At Santa Clara Law Group we deal with these issues very frequently and if you would like to discuss your particular situation, you can call our main office in San Jose, Santa Clara County at (408) 453-3500 for a completely confidential and free telephonic consultation which will be of a duration reasonable and adequate in the judgment of our staff attorney who assists you.  We also have an office in Santa Cruz County, and provide attorney family law legal representation in select cases in  counties of  Alameda, Contra Costa, San Mateo,  San Benito and San Francisco Counties.

CALIFORNIA FAMILY CODE SECTIONS 3000 – 3007 (On Basic Definitions Related to Custody of Children)

3000. Unless the provision or context otherwise requires, thedefinitions in this chapter govern the construction of this division.

3002. “Joint custody” means joint physical custody and joint legalcustody.

3003. “Joint legal custody” means that both parents shall share theright and the responsibility to make the decisions relating to thehealth, education, and welfare of a child.

3004. “Joint physical custody” means that each of the parents shallhave significant periods of physical custody. Joint physicalcustody shall be shared by the parents in such a way so as to assurea child of frequent and continuing contact with both parents, subjectto Sections 3011 and 3020.

3006. “Sole legal custody” means that one parent shall have theright and the responsibility to make the decisions relating to thehealth, education, and welfare of a child.

3007. “Sole physical custody” means that a child shall reside withand be under the supervision of one parent, subject to the power ofthe court to order visitation.

CALIFORNIA FAMILY CODE SECTIONS 4050 – 4076  (On Basic Child Support and Statewide Requirements)–This information is extensive and therefore I have provided a link to a governmental source for this information.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=04001-05000&file=4050-4076

In San Jose
Santa Clara Law Group
111 N. Market Street
Suite 810
San Jose, CA 95113
(408) 453-3500
FAX (408) 453-3900
info@santaclaralawgroup.com

In Santa Cruz
Santa Clara Law Group
289 Water Street
Santa Cruz, CA 95060
(831) 466-6766
FAX (408) 453-3900
info@santaclaralawgroup.com

The information contained in this web site and its associated web sites is provided as a service to the Internet community, and does not constitute legal advice. We try to provide quality information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site and its associated sites and we make no claim that any of the free forms contained in this web site are appropriate for your particular needs.

As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent counsel.

A Married Couple’s Fiduciary Duties Are Paramount In Divorce And Family Law Cases, What The Law Requires You Disclose.

Married couples have traditionally and historically been saddled with duties they owe each other. This is expected. After all, does it not all start with “Till death do us part.”?

Well, as we know all too well, divorce ends a marriage at times way before death ever has a chance. So, what happens to the duties a married couple owe each other? The answer is that they survive the marriage and have a very strong life during and even after a divorce is final.

California law imposes strict duties on spouses who decide to be divorced; among them duties of full and complete disclosure of facts. In truth, a married couple can hide much more from each other while they are married than when they intend to be divorce. Truth in deed shall set you free, or if you refuse, can hold you in contempt of court.

The rules governing the disclosures in a California divorce are mandatory and all persons involved in legal separation, divorce or even post judgment modifications related to a divorce, must observe complete honesty and full disclosures in the divorce process.

Generally, at all times, spouses in a marriage are legally bound to observe the general rules that govern all fiduciary relationships. A confidential relationship imposes certain duties on sometimes one party, and in case of a marriage on both sides, of the highest level of standard living up to showing a course of “good faith and fair dealing”. As I already noted, these positions of confidence, and duties associated, do not end when the marriage is ending, when the petition for a divorce is filed, or even after a final Judgment has been entered in the case; depending on the specific circumstances of each case, these duties may survive and carry on long after the former married couple think they have moved on.

Truth is, you cannot escape your past; you can only manage dealing with it.

The Applicable California Law

The following are only the major statutes encoded in California Family Code, and there are others which may either directly, or indirectly become material in process of a divorce depending on the specific facts or circumstances.

Family Code §§720-721:

720. Husband and wife contract toward each other obligations of mutual respect, fidelity, and support.

721. (a) Subject to subdivision (b), either husband or wife may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried.

(b) Except as provided in Sections 143, 144, 146, and 16040 of the Probate Code, in transactions between themselves, 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. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of non-marital business partners, as provided in Sections 15019, 15020, 15021, and 15022 of the Corporations Code, including the following:

(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.
(2) Rendering upon request, true and full information of all things affecting any transaction which concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.
(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which concerns the community property.

Family Code §1100(e):

The inter-spousal fiduciary duties defined in Family Code §721(b) continue until all assets and liabilities of the marriage are allocated and divided by agreement of the parties or order of a court. What you cannot agree upon, the court shall decide for you:

(e) Each spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships which control the actions of persons having relationships of personal confidence as specified in Section 721, until such time as the assets and liabilities have been divided by the parties or by a court. This duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable, and to provide equal access to all information, records, and books that pertain to the value and character of those assets and debts, upon request.

Family Code §2102(a):

(a) From the date of separation to the date of the distribution of the community or quasi-community asset or liability in question, each party is subject to the standards provided in Section 721, as to all activities that affect the assets and liabilities of the other party, including, but not limited to, the following activities:

(1) The accurate and complete disclosure of all assets and liabilities in which the party has or may have an interest or obligation and all current earnings, accumulations, and expenses, including an immediate, full, and accurate update or augmentation to the extent there have been any material changes.

(2) The accurate and complete written disclosure of any investment opportunity, business opportunity, or other income-producing opportunity that presents itself after the date of separation, but that results from any investment, significant business activity outside the ordinary course of business, or other income-producing opportunity of either spouse from the date of marriage to the date of separation, inclusive. The written disclosure shall be made insufficient time for the other spouse to make an informed decision as to whether he or she desires to participate in the investment opportunity, business, or other potential income-producing opportunity, and for the court to resolve any dispute regarding the right of the other spouse to participate in the opportunity. In the event of nondisclosure of an investment opportunity, the division of any gain resulting from that opportunity is governed by the standard provided in Section 2556.

(3) The operation or management of a business or an interest in a business in which the community may have an interest.

(b) From the date that a valid, enforceable, and binding resolution of the disposition of the asset or liability in question is reached, until the asset or liability has actually been distributed, each party is subject to the standards provided in Section 721 as to all activities that affect the assets or liabilities of the other party. Once a particular asset or liability has been distributed, the duties and standards set forth in Section 721 shall end as to that asset or liability.

(c) From the date of separation to the date of a valid, enforceable, and binding resolution of all issues relating to child or spousal support and professional fees, each party is subject to the standards provided in Section 721 as to all issues relating to the support and fees, including immediate, full, and accurate disclosure of all material facts and information regarding the income or expenses of the party.

Family Code §2102(b):

As to assets and liabilities, the fiduciary duties continue until the asset or liability has been divided between the parties. Thus, even if an asset is divided months or years after the end of the family law case, the parties continue to have the duty to fulfill their respective fiduciary duties with respect to that asset.

Family Code §2102(c):

From the date of separation to the date of a valid, enforceable, and binding resolution of all issues relating to child or spousal support and professional fees, each party is subject to the standards provided in Section 721 as to all issues relating to the support and fees, including immediate, full, and accurate disclosure of all material facts and information regarding the income or expenses of the party.

Family Code §§ 2103:

In order to provide full and accurate disclosure of all assets and liabilities in which one or both parties may have an interest, each party to a proceeding for dissolution of the marriage or legal separation of the parties shall serve on the other party a preliminary declaration of disclosure under Section 2104 and a final declaration of disclosure under Section 2105, unless service of the final declaration of disclosure is waived pursuant to Section 2105 or 2110, and shall file proof of service of each with the court.

The sections following §2103, through §2107, expand and explain these disclosure requirements and issues; including remedies for non-compliance. You should review these other sections if you wish to be fully informed, but it would be too repetitious to re-print them here since they are so widely available from many other sources.

Bottom line on legally required disclosures in a divorce process amounts to this: The Court cannot file a judgment resolving the parties’ property rights until the declarations of disclosure have been exchanged. However, the final declarations of disclosure do not have to be exchanged if the parties have agreed in writing to dispense with that requirement. If a party has not complied with the requirements regarding preliminary and final declarations of disclosure, the aggrieved spouse can ask the judge to order the defaulting party to comply. In extreme cases the judge can impose the sanctions discussed below.

FACING THE CONSEQUENCES: FAILURE TO COMPLY WITH FIDUCIARY DUTIES DIVORCING COUPLS OWE EACH OTHER.

The court can order that you “Pay a hefty Fine!” Here is something to worry about…reprinted from California Appellate Report; read and heed the warning:

In Re Marriage of Feldman (Cal. Ct. App. – Aug. 7, 2007)

What happens when you repeatedly deceive your spouse about marital assets in the midst of your divorce proceeding? You get sanctioned. A lot. Even if you’re very, very rich.

This is a great story, and concerns the marriage of Aaron Feldman and Elena Feldman, which broke up after 34 years of marriage. Aaron Feldman is worth, according to the opinion, over $50 million. And the story of what he (allegedly) did during the divorce proceedings, and why he got sanctioned, gives some telling insight into how these things transpire, as well as what can go wrong.

What the opinion doesn’t at all mention, however, is that Aaron Feldman is actually pretty famous. At least down here in San Diego. Amongst other things, he’s the owner of Sunroad Enterprises, which is in a huge fight down here in San Diego over a building that they constructed near the flight path of an airport that was 20 feet too tall, resulting from (alleged) private meetings with the Mayor of San Diego, and that ultimately resulted in a very-high profile (and ongoing) fight with the City Attorney of San Diego. Moreover, some sources describe Aaron Feldman’s worth at over $300 million, rather than the $50 million described in the opinion, and the divorce fight has apparently already generated over $7 million in legal fees.

So a nice little fight involving one of the highest-profile people about whom you’ve probably heard nothing. [Edited]

Anyway, even though a $175,000 sanction is peanuts to a guy worth $50 (or $300) million, the lesson of the day is that judges don’t like it if you try to hide things from your spouse in a divorce proceeding. At all.

The court can also award all of an asset a spouse has not disclosed and hidden (not just ½) to the other party. In one case, (In re Marriage of Rossi (2001) 90 Cal.App.4th 34 , 108 Cal.Rptr.2d 270) the husband was an entire $3 million amount of winnings in California lottery. The wife hid this small fact from the husband while they were getting a divorce. Other punishments for non disclosure include:

Not allowing the offending party to present their case at all; order the violating party to pay the other party’s attorneys fees, court costs and litigation expenses. Void a court order or judgment (“setting aside”) if it was entered as a result of non-disclosure and breach of fiduciary duty.

Bottom line again? The truth shall set you free when it comes to disclosing facts in your divorce process. Anyone who ignores this shall do so at their own peril. In the heat of the divorce, remember you joined that “couple-hood” voluntarily. Do not blame anyone else; do not even blame yourself. Just obey the law and be done with it.