My husband and I are separated but legally married. He wants to prepare a living trust stating that our home will be mine and his daughter. Is this possible or will our marriage override the will stating that he wants to include his daughter as a beneficiary?
Allow me to offer you a few options to consider.
Upon further relection and study on YOUR part, you'll be able to decide how best to proceed.
I'll address the common sense aspect, before I reveal the legal particulars available to someone situated in your particular predicament.
Spousal support (also known as
alimony) is a court ordered payment from one spouse or domestic partner to help cover the other's monthly expenses. In California, when it is between married persons, support is called spousal support. It's called domestic partner support between domestic partners.
1. You and your spouse have a written agreement
2. You ask the judge to order support
This is the same if you want to get support or you need to change the support amount.
The first thing to understand about who gets support in California is who absolutely does not get support. Under California law,
alimony or spousal support cannot go to anyone who has been convicted of a recent domestic violence or sexual assault felony against their spouse or children or who has attempted to murder their spouse.
There is also presumption under the law—meaning it's not required that courts follow it but strongly recommended—that no one convicted of any misdemeanor offense of domestic violence or sexual assault against their spouse should get spousal support. This is just one of the many factors that the judge will consider in determining if spousal support is appropriate, how much it should be, and for how long it will be paid.
The factors that are spelled out in California law are:
- The needs of each spouse, based on the standard of living they had during the marriage
- The earning ability of each spouse, taking into account their marketable skills, the job market for those skills, how much time and training the lower-earning spouse would need to develop those skills, and how much that spouse's earning capacity was reduced because of time taken out of the job market to care for children and the home during the marriage
- the supporting spouse's ability to pay spousal support
- the supported spouse's ability to be gainfully employed without unduly interfering with the best interest of the children
- each spouse's age and health
- each spouse's debts and assets, including their separate property
- the duration of the marriage lasted
- how much the lower-earning spouse contributed to the other's educational degree or professional license during the marriage
- whether there's documented history of domestic violence against either party or the children
- the balance of hardships for each spouse
- any other factors the judge believes should be considered, based on what's fair
March 20, 2020
admin
You probably don't need this article to tell you that quality legal representation in a
California divorce is not exactly cheap. When it comes to preserving your rights to obtaining property, child custody, spousal support, and child support (the latter two of which are often paid for many years), a knowledgeable and effective family law attorney on your side can be one of your best investments ever. Still, hiring an attorney can feel like a significant financial strain at a time when you are very concerned about finances.
In California, however, courts have a relatively liberal policy towards ordering a spouse with greater financial assets to pay attorney's fees to the other spouse. Such attorney's fees can be awarded at any point in the
divorce process, including in a pre-trial "RFO" (Request for Order) hearing or at the trial itself. And because attorneys understand that courts will often award attorney's fees, many attorney fee awards are made voluntarily from one party to the other as part of a settlement or a pre-trial stipulation.
California Family Code section 2030 states that:
"In a proceeding for dissolution of marriage…and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party…to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding."
What this means, again, is that a California family law court can require one party to have to pay attorney's fees to the other party or their attorney, and this award can happen at any point in the divorce process, even right after the petition for divorce is filed.
The California Family Code goes on to say that, in determining whether to make such an award, it will look at the "disparity" between the two parties in their ability to pay. This does not mean that one party has to be flat-broke to get an attorney's fees award, but rather that party needs to show that the other party has a greater ability to pay for attorney's fees and the ability to pay for legal representation for both parties. Courts have awarded attorney's fees to parties that would be considered quite wealthy in most circles based on the fact that the other party was even wealthier.
Don't expect, however, that a court will award you a blank check for attorney's fees to "go to town" on the other party. Courts do want to promote amicable and swift resolution to cases and thus do not want to incentivize unnecessarily long or intense litigation by giving a large amount of attorney's fees that are unneeded, thereby encouraging a lawyer to fight just because he has the money to do so. Instead, the court will want to see a clear explanation from your attorney of why the fees are needed and specifically what they intend to do with the funds to bring the case to a resolution.
If you are concerned about the cost of legal fees that may be involved in your divorce, you should make that clear at the outset with your family law attorney so that you can discuss options such as pursuing an attorney's fees award and the best strategy for doing so. It's important to strike the right balance between the need for you to get some control over your case against the important goal of preserving your hard earned money for your family.
A divorce is an adversarial process.
You are PARTNERS, now you've decided to break ties/bonds of the past, proceeding into the future alone.
Don't allow yourself to become beguiled by memories of the good times, which have probably diminished or disappeared; hence the reason you're now considering divorce.
Going forward, don't communicate with your SOON TO BECOME FORMER PARTNER.
That's why you hired or wish to hire an attorney.
You probably want the STBFS (soon to be former spouse) responsible for supporting the children he sired and you birthed. Of course, you want to contribute your fair share, too.
If one of you earn more money than the other, the State of California (via it's court system) will sort that for you.
Heck, you might be able to have the court order your STBFS to pay or assist you in paying your crafty attorney.
Don't cheat your children.
Don't cheat yourself, get busy hiring an attorney to make sure you get EVERYTHING you deserve, not scraps your STBFS wishes to offer.
Good luck, stay the course, keep the faith, fight the good fight, protect your children, and yourself.