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  • child custody

Legal and Physical Custody

In California, there are two types of custody, “legal” and “physical”. Parents typically share both types unless one parent is deemed unfit or the parents cannot make decisions together.

Legal Custody

Legal custody is the right to make major decisions about a child’s welfare, such as where a child will go to school or whether a child will engage in religious activities, and whether a child should receive medical care.

In California there are two types of legal custody, Joint and Sole. Joint legal custody means that both parents share in the right and responsibility to make decisions relating to the health, education, and welfare of a child.

Sole legal custody means that one parent has the right to make all major decisions relating to the health, education, and welfare of a child, and may make decisions without input or approval from another parent.

Physical Custody

Physical custody refers to where a child will live after a divorce or separation. The parent has the right to have the child physically present in the home. If a child lives exclusively or primarily with one parent, that parent is usually referred to as the “custodial” or “residential” parent. The other parent is considered the “non-custodial” or “non-residential” parent and typically has visitation rights.

In California, there are two types of physical custody, Joint and Sole. Joint physical custody means that both parents have significant periods of physical custody. If a child’s time is divided equally between the parents, or close to equally, the parents are sharing joint physical custody. Sole physical custody means that a child resides with one parent, subject to the court’s authority to order visitation time with the other parent.

Thorsteinson Law Group | Huntington Beach divorce attorney | Long Beach divorce attorney. Contact Thorsteinson Law Group  to help you with your divorce. We provide complimentary consultations, and are dedicated to bringing you a lasting resolution.

  • divorce and designated beneficiaries

Divorce and Designated Beneficiaries

Married couples typically name their spouse as the beneficiary on their company 401(k) plan, individual retirement plans, annuities, life insurance policies and other accounts with designated beneficiaries. It’s important to keep in mind that a divorce does not automatically change all your designated beneficiaries. The best way to avoid potential problems in the future is to make a note to update your beneficiaries after your divorce is final.

There is so much going on during a divorce that one of the easiest mistakes to make is to forget to update the beneficiary information on all accounts. The result of which is often realized too late, when years later a family member is told that your ex-spouse will receive all assets from a retirement or pension account.

In the case of a life insurance policy, remember that the divorce judgment itself does not automatically cancel a spouse’s right as the beneficiary. To remove the ex-spouse as the beneficiary, the insurance company may require the spouse’s consent or a clearly worded divorce judgment stating who owns the insurance policy, who shall be the beneficiary, or who has the right to designate the beneficiary.

If you are currently in divorce proceedings, you have to wait until the divorce is final to make changes. However, immediately after the divorce is final you are free to make changes and it is in your best interest to make those changes sooner rather than later.

If you are unsure whether or not you want to update your beneficiary designation, you should set a reminder in your calendar for one year later to remind you to revisit the issue and make changes if you need to.

Contact Brett Thorsteinson, your trusted divorce and family law attorney to help you with your divorce. Brett listens to your needs and works diligently to protect your interests.

  • Child Custody

In Child Custody Can A Child Decide Where To Live

In any child custody case, talk to a young child about which parent they would prefer to live with and you might hear something like “I want to live with dad because he lets me eat ice cream” or “I want to live with mom because she buys me cool clothes”. While a cool t-shirt or a bowl of ice cream may not impact the perspective of every child, a child’s current frame of mind and understanding is something that needs to be taken seriously when deciding which parent gains child custody in a divorce.

So the question is, in child custody can a child decide where to live? The most plain and simple answer is no. Currently, in California law, a child’s wishes for custodial parent is up to the judge’s discretion and there is no specific age where the court will consider the wishes of a child in deciding custody.

However, the law does state that a judge must consider a child’s wishes regarding visitation and further states that a child who is at least 14 years old must be allowed to directly address the court regarding custody and visitation, unless the judge finds that it would not be in child’s best interests.

For more on child custody you can visit Brett Thorsteinson’s child custody pages here. Child custody and visitation are some of the most difficult parts of a divorce. Divorcing spouses must never use children against one another. Under California law, the health, well-being and safety of the children are top priority.

Contact Brett Thorsteinson and speak directly with an experience divorce and family law attorney who will protect your interests. Brett is your trusted divorce lawyer who can help you with child custody and all family law matters. Offices are located in Long Beach and Huntington Beach with free initial consultations.

  • Who Gets the House in a Divorce

Who Gets the House in a Divorce

Who Gets the House in a Divorce can be one of the most contentious parts of a divorce, and for very good reason. When going through a divorce, it is important to understand all aspects of marital property, especially bigger things like your family home.

Deciding who gets the house in a divorce involves more than asking who wants it the most. You also have to consider mortgage responsibilities and whether you can afford the house based on your means.

Does It Matter Who is Listed on the Title?

Divorce lawyers often see controversy over who gets to stay in the family home. This is justifiable because the house is visible, valuable, and emotional. There are definitely good reasons to stand your ground, including continuity for the children, emotional attachment, and sometimes convenience. There are also bad reasons for desiring the house, including vindictiveness, ego gratification, and budgetary concerns.

Deciding who gets the house in a divorce involves more than asking who wants it the most. You also have to consider mortgage responsibilities and whether you can afford the house based on your means.

Due to credit issues or spousal pressure, many married couples have the home’s title under one person’s name. In general, California law doesn’t give the title bearer too much weight and still considers the home community property. If there is only one spouse’s name on the title, this issue should be discussed at length with your attorney because it can be a grey area under California divorce law.

For obvious reasons, California freezes the sale or mortgaging of a home during a divorce. Even if the property is under a sole person’s name, a spouse or court’s approval is required to put your marital home on the open market. Also, your spouse can also file a “lis pendens,” which is a lien saying there is a claim on the title.

The decision to stay in your home during the divorce may have implications in your temporary spousal support payments. Your spouse can be living in the house temporarily under a court ruling, but this does not prevent you from asking for the home during the divorce trial.

Contact Brett Thorsteinson at Thorsteinson Family Law for your free initial consultation. We are here to listen to your needs and help you with all of your family law matters including divorce, child custody, spousal support and more.

California’s Uniform Premarital Agreement Act

The Uniform Premarital Agreement Act (UPAA) is a uniform act, a federal law that establishes minimum standards and provides a basis for states to determine how and when a premarital/ prenuptial agreement should be enforced. The act was proposed in response to the large number of people who were getting married and planning to continue to pursue careers outside of the home. This act was created by a group looking for ways to resolve-by-agreement any issues that may arise as a result of the approaching marriage.

California adopted the UPAA in 1986. California’s UPAA can be found in California Family Code sections 1600 to 1617. The California UPAA differs from other states with regard to what can be contracted about in a valid premarital agreement and when a premarital agreement is enforceable

California’s UPAA removes section 3(a)(4) of the UPAA, which allows parties to a premarital agreement to modify or eliminate spousal support. In California, any provision regarding spousal support is ineffective if independent legal counsel did not represent the party against whom the enforcement is desired from when the agreement was signed. This section also states that an otherwise unsanctioned provision in a premarital agreement regarding spousal support may not become legitimate only be- cause the party against whom enforcement is sought was represented by independent counsel.

Therefore, California raises the standard for parties hoping to modify or eliminate spousal support by agreement. Regardless of what is decided upon by parties, it is good to recognize that it is possible to validly waive spousal support by premarital agreement in California.

If you have specific questions about premarital agreements or need help with your divorce, contact Brett Thorsteinson, your trusted and experienced divorce and family law attorney.

  • summary dissolution

Summary Dissolution

For couples that have been married less than 5 years and are looking to end the marriage without a court appearance, might look into a summary dissolution. A summary dissolution is a divorce without the hassle of talking to a judge and waiting for final divorce documentation. Couples that have been married or in a registered domestic partnership for less than 5 years can get a summary dissolution as long as they also meet other requirements.

What is a summary dissolution

A summary dissolution is an easier way to end your marriage or domestic partnership (or both) because it has forms and a guide for filing your own case. To find out if you qualify for a summary dissolution read the requirements below.

For both domestic partners and married couples, in order to qualify for a summary dissolution, both must meet all of the following requirements:

• Have been married less than 5 years or have not been registered as a domestic partnership for more than 5 years
• Have no children together
• Do not own any land or buildings
• Do not rent any land or buildings (except for where live)
• Do not owe more than $6,000 for debts gained since the date you got married (car loans do not count)
• Have less than $41,000 worth of property acquired during the marriage
• Do not have separate property worth more than $41,000;
• Agree that neither spouse will ever get spousal support
• Have signed an agreement that divides your property and debts and debts or says there is no community property or debts to divide.
• Meet the residency requirement (either you or your spouse must have lived in California for the last 6 months and in the county where you file for summary dissolution for the last 3 months)

Once you find that you qualify the processes then differ between married couples and domestic partners. Keep in mind that although summary dissolutions are meant to be easier than the court divorce process, it is in your best interest to see a lawyer about ending your marriage.

If you need help, please contact Brett Thorsteinson to help guide you. I provide complimentary consultations, and are dedicated to helping you through the divorce and post-divorce process.

Four types of alimony

Alimony is payment made by one ex-spouse to another to help support them during and after divorce proceedings. It is usually ordered when the judge finds that the divorce caused economic consequences for one ex-spouse. Below are the four types of alimony along with the factors in alimony/spousal support.

Four types of Alimony

Temporary – This is also known, as “alimony pendente lite” is an ongoing payment that is made when a couple is separated or in divorce proceedings, but not yet divorced. It can include payment for divorce costs, daily expenses, and continues until the court determines permanent alimony.

Permanent – The amount awarded after the conclusion of divorce proceedings, paid on a regular, recurring basis. Permanent alimony is usually due indefinitely, but is subject to change under certain circumstances such as remarriage or cohabitation.

Rehabilitative – In situations in which one ex-spouse is not self-sufficient, the judge may order payment of rehabilitative alimony to provide financial support while searching for a job or while attempting to expand employment skills. This is typically ordered for a fixed period of time.

Reimbursement– This type of alimony was intended to balance the scales on any support provided for higher education or work training by one ex-spouse. It requires a regular payment to reimburse the sponsoring ex-spouse the tuition costs paid, or a portion of those costs.

Lump-sum – This is also known, as “alimony in gross.” If one ex-spouse does not want any property or items of value from the marriage, the judge may order a one-time lump-sum payment in replacement of the property.

How the court awards

Spousal support awards are generally based upon the needs and abilities of each party, and when deciding, judges look at the following factors:
• The duration of the marriage
• Health and physical condition
• The earning capacity of the parties
• Present income of the parties
• The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party;
• The ability of the supporting party to pay spousal support
• The needs of each party based on the standard of living established during the marriage
• The jurisdiction of the marriage

If you have specific questions about alimony and divorce contact Brett Thorsteinson, your trusted and experienced divorce and family law attorney. Offices in Huntington Beach and Long Beach with free consultations.

  • Retroactive child support

Get the retroactive child support owed to you

Retroactive child support are payments that were missed or not paid in the past. This means the child support order isn’t just from a present or future date, going forward but a retroactive one going backward to start at a previous date. If a parent has failed to pay child support for the retroactive time period (before a permanent child support order was issued), the judge may order them to make up for the missed payments.

Retroactive child support starts once the judge determines if the parent and child are eligible for this type of order. The judge looks at the following factors when deciding:
• The non-custodial parent had hidden some of their finances in order to avoid paying support
• The non-custodial parent acted in a way to delay a final hearing on child support
• The court concludes that there is a demonstrated need for retroactive support

If determined that there is a need for the non-custodial parent to pay retroactive child support, the court will determine the retroactive date trough the date the first child supply order was issues. It can also go as far back as the date of the parent’s separation.

The petition is typically what starts a divorce or parenthood action. That means the start date of the first California child support order can go back to the date that was filed even though the Court hearing is after that. For example, a petition for divorce is filed on January 1. It is then served. A request for order for child support is then filed on February 1. The hearing is on March 10. When the court makes its child support order at the hearing, they can make it retroactive to February 1 or March 1.

There are exceptions to this for example, when that initial petition (or other document that started the process) wasn’t served on the other parent within 90 days of its filing, then the retroactive start date is the date it was actually served.

There are other exceptions to the past date retroactive child support is issued. To gain more information on these exceptions and other questions regarding child support and divorce, contact Brett Thorsteinson, your trusted and experienced divorce and family law attorney.

  • Transmutation and Property Division in divorce

Transmutation Property Division Defend Your Rights

Transmutation occurs during the property division process in divorce. California is a community property state meaning all marital property is equally owned by both spouses. However, this doesn’t mean everything must be divided down the middle. Many assets and debts, like homes and loans, cannot be divided equally unless they are paid off or sold for their profit. That is one reason property division in a community property state is a matter of negotiating a fair division of the overall net-worth of the marital estate. The property being divided just needs to be divided equally. For example, if one spouse takes a large asset, the other may take many, smaller assets. Once the assets are divided fairly, ownership must be changed.

Transmutation

Transmutation is the process of exchanging ownership during property division or any other transaction. For example, if you have two community property cars in your name and your spouse will be taking one in the divorce, you can transmute this property by transferring ownership from the marital community to your spouse. You can also transmute your separate property to your spouse as part of the divorce settlement. This can be done accidentally as well, if you turn separate property into community property. This is called commingling and results in you transmuting your separate property to community property.

Understanding the types of property that can be transmuted is also an important part of division of property. Transmutation means to change form, and in the context of California, Orange County divorce cases, transmutation means that property has changed form or character in one of the following ways:
• Property changed from community property to separate property
• Property changed from separate property to community property; or
• Property changed from one party’s separate property to the other party’s separate property.

Transmutation is explained in the California Family Code Section 850. Transmutations can only occur between spouses or registered domestic partners, and don’t involve third parties (i.e., sellers). The concept does not apply to the initial acquisition of property, but instead to property that is already owned by one or both spouses. Both personal property (i.e., cars) and real property (i.e., the family residence) can be transmuted.

Your trusted divorce attorney

Contact Thorsteinson Law Group at (562) 430-7676 now for your free consultation. Thorsteinson Law Group is the best divorce attorney to help you with property division. We are dedicated to helping you and will advocate for your rights.

Long Beach Divorce Attorney Thorsteinson Law Group

3780 Kilroy Airport Way, Suite 200
Long Beach, Ca. 90806

Phone: (562) 430-7676

  • alimony

Alimony and Temporary Support Divorce

California alimony laws allow for temporary support to the necessary party before there is final judgment. The court has the power to order temporary alimony based on a spouse’s need and the other spouse’s ability to pay.

Alimony and Temporary Support

Temporary spousal support generally has nothing to do with the length of the marriage. A party seeking spousal support isn’t deprived on the right to receive support even if they have income. What is reviewed is the comparative income circumstances of the two parties. The greater the difference in income, the higher the support the paying party must give. Temporary orders are traditionally ordered to be paid directly to the deemed party. The duration of the alimony generally lasts until there is a final judgment or any other date set by the court.

Courts normally use one of two computer programs to calculate temporary support: the Dissomaster or Xspouse. These programs are the same systems used to calculate child support in California. Whether the program Dissomaster or X-spouse are used, the same limitations as you would enter for child support, which include income, tax filing status, exemptions, are entered for alimony. The program determines what the net disposable income is and what alimony should be on a temporary basis. The program is not used for long term alimony, that would be forbidden in California.

Calculation

If the spouses have children, this calculation is typically made with the child support calculation. The amount of the alimony is dependent on the amount of child support ordered, which means that if the child support amount is eliminated, the alimony may increase. The final support numbers depend upon how much income the court is attributing to each party. Only certain expenses matter for purposes of temporary support in California. What doesn’t matter much at the temporary phase are most personal expenses like credit card bills, rent and other costs of living. When calculating income to determine temporary support, the court will typically go back approximately 12 months. That time period is typically a fair and representative one of income, especially when income is fluctuating. The court can go longer especially if a spouse is self-employed.

Your Trusted Long Beach Divorce Attorney

For matters on alimony and temporary support, contact an experienced long beach divorce attorney. Thorsteinson Law Group is your trusted divorce and family law attorney. With offices in Long Beach and Huntington Beach, we serve clients throughout Los Angeles and Orange Counties.