What Is Spousal Support?
The phrase ‘spousal support’ basically refers to alimony. It is a fixed payment given to a spouse on a monthly basis after a divorce has been finalized. Why is spousal support necessary? Spousal support helps ensure that the dependent spouse is in a position to enjoy a decent quality of life, one that they have gotten used to during the period of their marriage.
It is critical for both spouses to be aware of their rights and obligations with respect to spousal support before the divorce papers are filed. Each partner must know important details such as the exact amount of support to be offered and the duration for which it will be paid. This information will help both spouses be prepared for what is to come.
Calculation Of Spousal Support In California
As mentioned earlier, the court orders for spousal support typically instruct one spouse to make a fixed monthly payment to the other for a certain period of time. The time period for spousal support is usually determined on the basis of the duration of which the couple was married and some other relevant factors. An experienced divorce attorney can guide couples with regards to calculation of the alimony money.
When the court is determining alimony, it would usually consider the income of the spouse who has received higher earnings as income in the last 12 months. Spousal support is meant for preserving the existing lifestyle and financial situation of a spouse as best as possible.
As far as the calculation of spousal support in California is concerned, the Solano Superior Courts follow the “Santa Clara Guideline” for temporary spousal support. LA, Ventura and Santa Barbara also follow the same guideline. The “Alameda Guideline” formula is followed by the Contra Costa and Alameda counties. According to the guideline, the support paid by a spouse should be approximately 40 percent of their total monthly income. This will be divided by half of the total monthly income earned by the receiving partner. In cases where child support is involved, the calculation of spousal support is done after the calculation of child support.
Time Duration For Spousal Support In California
Even though spousal support is offered for helping the lower income earning spouse, there are various ways in which it can be misused. Also, there is a common misconception regarding the permanency of spousal support. For those who are involved in a divorce litigation including spousal support, it is vital to have all the necessary information regarding issues which will be important in determining the support duration and amount to be paid or received.
In most cases, spousal support is not offered for the entire lifetime of the receiving spouse. The purpose of spousal support is to allow the partner to become independent within a realistic time period. In cases when the marriage lasted for less than 10 years, the court usually considers one-half of the marriage length as a reasonable time period for spousal support. For marriages with a duration that’s less than 10 years, alimony will be paid for half of the length of the time. For instance, if a couple was married for 8 years, then one of the spouses will be offered support for 4 years, that is, half of the marriage duration.
Spousal support works a bit differently for marriages that have lasted over 10 years. In such cases, the spouse providing support may continue to pay alimony to the dependent spouse until the time it is needed. The reason why there is no finite time period for spousal support in long-term marriages is because of the fact that the courts do not have a proper system for determining the same. However, this does not imply that California law is in favor of permanent spousal support.
DATE OF SEPARATION IN DIVORCE ACTIONS: THE OLDEN DAYS, PROGRESSION, AND THE CURRENT VIEW FROM THE BENCH
The Olden Days
“Evidence showed that there was no final parting of the ways or intention not to resume marital relations under the same roof until such time as wife refused to permit husband’s return to their home”–Legislature adopted the Civil Code in 1872.
“The question is whether the parties’ conduct evidences a complete and final break in the marital relationship”. Marriage of Baragry (1977)
“The court held that “legal separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship”. Marriage of von der Nuell (1994)
Current View From The Bench
In our view, the language in these cases–requiring consideration of ” all of the relevant evidence” regarding ” ‘whether the parties’ conduct evidences a complete and final break in the marital relationship’ ” (Umphrey, Baragry), requiring both a lack of “present intention of resuming marital relations … [and] conduct evidencing a complete and final break in the marital relationship” (von der Nuell), and indicating that “[a]ll factors … are to be considered” in deciding the ” ultimate question” of “whether either or both of the parties perceived the rift in their relationship as final” (Hardin)–must be understood in the context of their facts, which reflect that in each case the parties had moved into separate places of residence. These cases do not address, and therefore are not authority for a conclusion that “living separate and apart” was intended by the Legislature, originally or subsequently, to require, as wife argues, only demonstrated conduct reflecting a subjective intent to part ways with no plan of resuming the marital relationship, which might, but need not necessarily, include physical separation. (Cornejo)
We conclude that living in separate residences “is an indispensable threshold requirement for a finding that spouses are living separate and apart”. This interpretation of the statutory language aligns with the common under-standing of the words, the statutory history of the provision, and legitimate public policy concerns.
Premarital Agreements – An Interstate Issue?
The main purpose of a premarital agreement is to predetermine the treatment or division of property in case of death or divorce. In addition to predetermining the treatment or division of property in case of death or divorce, premarital agreements may also restrict spousal support payments once the divorce has been finalized. You may come across a variety of different prenups or premarital agreements. Some of them completely eliminate community property while substituting it with an alternate plan. On the other hand, other agreements state what both partners bring to the marriage (independent property). These agreements also make room for sharing the income earned over the course of the marriage.
In the drafting of premarital agreements, it is critical to foresee that the prenup might be subjected to litigation in a different state(s). It is sometimes possible to predict the places in which the parties may finally settle on the basis of factors like accessibility of close contacts or ownership of vacation homes in certain states.
In an attempt to protect clients, divorce attorneys often advise them to hold on to counsel in such jurisdictions and seek their help in drafting the premarital agreement. If this is not done, then the client should be warned that the prenup might not be validated in other states or countries. Living in a highly modern and dynamic society, it isn’t uncommon for a client to shift base to a state where the premarital agreement might not be applicable.
Changes to Premarital Agreement Legislation in California
There has been a dramatic change in the premarital agreement legislation in California over a period of time. The premarital agreement legislation underwent transformation because of two different cases in the year 2000: The Marriage of Fireman and Pendleton (24 Cal 4th 39), and the Barry Bonds case, In re Marriage of Bonds, handled by the California Supreme Court.
In the year 2002, a statute was passed by the state of California in order to deal with these cases in the Supreme Court. This statute limited the time of entry into premarital agreements. Premarital agreements have become increasingly popular, especially among partners (cohabitating or married) who might have dramatic differences in income, wealth, family businesses, children from earlier marriages (security of inheritance rights), and pension rights.
The new premarital agreement legislation in California requires you to present the agreement to your partner a minimum of seven days before the signing. Further, it also states that the limitations related to spousal support will be established during the trial and that these limitations will applicable in case there is no counsel representing the parties during the trial.
Interstate Issues Related to Premarital Agreements
In California, there are no specifications with regards to dealing with premarital agreements that are formulated and entered into in other states (and may not be in line with California legislation). Such an agreement needs to state that it will be enforceable in accordance with the law of the particular state in which it is established. However, the handling of the agreement will still vary depending on the Courthouse Judge in California, so the results might be fairly unpredictable.
If your partner has presented you with a premarital agreement, it may be a good idea to get acquainted with your rights and duties before signing the agreement. Seeking the guidance of an experienced attorney is advisable when reviewing the contents of a premarital agreement. This will allow you to make necessary changes before the agreement is finalized.
Premarital agreements can serve as important tools for couples, particularly those holding significant property and other assets before marriage. Careful and thoughtful consideration of the premarital agreement is important to ensure that your financial and emotional security is safeguarded under all circumstances in the future.
SERVICE OF PROCESS ON A PARTY RESIDING IN A FOREIGN COUNTRY CAN BE A DAUNTING TASK FOR U.S. CLIENTS AND ATTORNEYS.
In a general scenario, a plaintiff starts a court case in the United States by lodging a complaint following which a court clerk provides a summons that demands the appearance of the defendant in the court. The complaint and the summons are typically termed as a legal ‘process’. Once the action is commenced, the plaintiff will arrange for the ‘service of process’. Service of process is crucial for establishing authority on the defendant in the case and helps ensure that he/she makes an appearance at the court proceedings.
The first step in filing a complaint against a person who lives abroad is to ask the court for an extension on the time period needed for serving the complaint on to the defendant.
According to the California Rules of Court Rule 3.110, a defendant needs to be provided with the Summons within two months after the original complaint is filed or 30 days post the filing of an altered Complaint.
Over 60 days are needed for serving a foreign defendant. Also, the court will sanction you in case you fail to show good cause with regards to why the foreign defendant was not served. When a defendant resides in a foreign country, it is considered to be a good cause.
Methods of Service in California
In California, it is possible to serve a defendant living in a foreign nation using any method listed under the California Code of Civil Procedure (amount of $415.40 for serving an individual living in a different state). Such methods would typically include substituted service, personal service, service via publication, and service via certified mail (return receipt).
You could also implement service through the methods allowed by the nation where service is made. This particular method can be used only if it is approved by a court in California.
In the first go, service of process on an individual living abroad may appear to be quite simple. But the matter could get complicated if the method of service is restricted by an international treaty. The Inter-American Convention on Letters Rogatory and the Hague Service Convention are the main applicable treaties.
The Hague Convention
It was in February 1969 that the Hague Convention came to be implemented for the first time in the United States. The convention offers the most common methods to serve parties in commercial or civil matters in foreign lands, that is, outside the United States. The Hague Convention has been ratified by more than 70 countries, including China, the Russian Federation, and the majority of the Western European nations.
The universally accepted service of process procedures is codified by the Hague Convention in commercial or civil matters among signatories. The service methods help eliminate the need for serving process via diplomatic or consular channels.
Under the Hague Convention, three key alternative methods of service are listed:
1. Using the official Central Authority of the state (Reference: Service through the State’s Central Authority)
2. Direct Service via agent in destination state (Reference: Service through an Agent in the Destination State)
3. Worldwide postal channels (Reference: Service through Postal Channels)
The Inter-American Convention on Letters Rogatory governs the ‘Letters Rogatory’ method for service. You need to send the Letters Rogatory to an official “Central Authority” in the country where the service is being attempted to get effectuated. This needs to be supported by several other documents including a copy of your complaint and information on obtaining legal aid in the US. If a nation has signed the Hague Convention, the service needs to be carried out as per the Convention rules.
WHEN MARRIAGES END UP IN DIVORCE, MANY QUESTIONS START TO ARISE. ONE OF THE MOST IMPORTANT QUESTIONS IS TO DO WITH SPOUSAL SUPPORT OR ALIMONY. ALTHOUGH ALIMONY FIGURES IN ONLY ABOUT 10 TO 15% OF DIVORCES, UNDERSTANDING HOW THE LAW LOOKS AT SPOUSAL SUPPORT IS IMPORTANT FOR BOTH SPOUSES.
Who Pays The Support?
Litigations are often fought on the issue of who has to pay and how much when couples fail to reach an understanding on their own. Usually, the higher earning spouse pays the one who earns a lesser income or is not earning at all, such as stay at home moms.
Is The Support Permanent?
A temporary support is a short term one that is awarded until a final settlement can be made. The Family Court in California has the authority to order one spouse to pay the other, with a pending divorce.
The long-term spousal support is the final or permanent support that is awarded by the court.
A permanent support that lasts a lifetime is only in cases where one of the spouses is disabled or chronically ill and unable to earn. In all other cases, the amount of support awarded is tapered off, so as to encourage efforts of the dependent to become self-supporting. Courts usually consider half of the duration of the marriage as the time required for the supported spouse to become self-supporting.
SURROGACY IS AN EXCELLENT ALTERNATIVE TO STARTING A FAMILY, BUT REQUIRES A THOROUGH UNDERSTANDING OF SEVERAL LEGAL ASPECTS AS THEY MIGHT VARY ACROSS JURISDICTIONS. IT HAS BECOME QUITE POPULAR AMONG COUPLES WHO ARE UNABLE TO HAVE A BABY AND EVEN AMONG SAME-SEX COUPLES.
The Surrogacy Process
For those who are unfamiliar with the term ‘surrogacy’, it refers to a process in which a baby is carried by a woman with the knowledge that he/she would not be her own. Women who are unable to have their own children may look for a surrogate. A doctor typically implants the woman’s eggs and the man’s sperms into the surrogate for the birth of the fetus. In other words, the surrogate is like an incubator for the couple’s future baby.
Here are some important things that you need to take note of when planning for surrogacy:
Finding A Surrogate
Finding a surrogate may take time. Not every woman can qualify to be a surrogate. In fact, most agencies have highly strict requirements for surrogates. For instance, the woman should have had at least one healthy pregnancy with an uncomplicated delivery. In addition to this, she would have to undergo various psychological and health screenings besides reporting financial stability.
Several people assume that the state surrogacy laws are one of the last things that they need to deal with. In reality, this is one of the most important matters in surrogacy. While some states have “surrogate-friendly” laws, such as California, others might have multiple restrictions that could interfere with the process. For instance, paid surrogacy is absolutely banned in some states. Therefore, some couples might think of finding a surrogate living in a different state, where the delivery can take place smoothly without any legal hassles.
Sometimes, it is a good idea to ask a relative or a friend to become your surrogate. While this could be controversial, it may help save a lot of money since surrogacy is quite an expensive procedure and involves a number of complicated legalities.
It is important to understand everything about insurance when planning for surrogacy. You need to know if your surrogate has a personal insurance or if you need to get her coverage. The to-be parents might also like to think about whether their new-born baby will be covered under their insurance or a new-born coverage needs to be purchased.
Selecting An IVF Clinic
Selection of an IVF clinic is a key step in surrogacy planning. This is where all the parties involved, that is, the surrogacy agency, the surrogate, the parents, and the egg donor will come together. The IVF clinic will be able to analyze the case thoroughly and raise any red flags regarding the component parts. This will help address potential issues immediately.
No Payment For Surrogacy
The majority of the surrogacy arrangements globally are altruistic. This means that besides covering certain medical costs, the surrogate mother does not take any money for her womb services from the parents. But commercial surrogacy is also being commonly practiced worldwide, including various states in the U.S.
The Matching Process
Intended parents and potential surrogates are matched on the basis of various factors, like common beliefs. These could include selective termination of the plan of action in unexpected scenarios such as if the baby comes out with a birth defect.
You Can Be Part Of The Experience
Don’t hesitate to participate in as many doctor appointments as possible. This is a magical experience and something that you will cherish forever.
SECOND-PARENT ADOPTIONS ARE ALSO SOMETIMES REFERRED TO AS ‘CO-PARENT ADOPTIONS’.
Who Should Go for Second-Parent Adoption in California?
In this type of adoption, the biological or legally adopted child of one partner gets adopted by the non-legal or non-biological second parent (applicable to same-sex and heterosexual partners).
The legal parent gives his/her consent to the second-parent adoption and there is no change in the rights and duties of that parent. Second-parent adoption is quite different from traditional adoption. An idividual gets the opportunity for adoption even if he/she is not the child’s biological parent. This type of adoption is common among same-sex partners who may not be married or legal domestic partners.
Who Can File For Second-Parent Adoption?
In the state of California, anybody who does the active parenting for a child can file for a petition in the court to get legal rights. As mentioned earlier, same-sex couples are among the most common category of people to undertake second-parent adoption. However, you may also find close friends and family members wanting to file for second-parent adoption in case the single parent gives consent for the same. Typically, a child’s best interest is kept in mind in matters of second-parent adoption. In fact, the state of California now gives permission for a child’s birth certificate to have three parents if it is in the best interest of the child.
For those who aren’t legal/registered domestic partners or married partners, second-parent adoption is a brilliant way to enjoy the joys of parenthood. This is especially true for those living in states such as California where second-parent adoption is legally permissible.
Same-sex couples are often encouraged to consider this option. This is because if they decide to move to a different state which does not consider same-sex marriage to be legal, no recognition will be given to the legal duties and rights of the second parents with regards to adoption.
Benefits Of Second-Parent Adoption
It is important to understand that a second-parent adoption does not terminate the legal relationship between the child and the biological parent. Yet, the second parent enjoys all rights and duties associated with parenting in the state of California.
In a second-parent adoption, the child is able to enjoy both emotional and financial stability. It allows for an easier transition in the event that there is a mishap with the biological parent. In such a situation, the child would need the complete support of another parent.
Another advantage of second-parent adoption is that guardianship procedures are unnecessary when there is a second legal parent to take care of the child. Inheritance rights may also be affected by adoption and this can benefit the child as well as the state. How? It eliminates the possibility of a child acquiring a ‘dependent’ status.
The most critical aspect of adoption, whether standard or second-parent, is that the child’s best interest needs to be kept in the forefront of the process. This includes his/her safety and overall well-being. For instance, in case the child ends up in a life-threatening medical situation, wherein a quick decision must be taken, the second-parent adoption could actually help save the child since second-parents have the right to take medical decisions.
The Second-Parent Adoption Procedure
The process for second-parent adoption is quite simple. Once the legal/biological parents give consent, you need to file a petition in the court. This will be followed by a private or public agency social worker doing a complete investigation on the adoption case (including fingerprinting, parent and child interviews, getting letters of recommendation and other procedures). A full investigation report will be written and submitted to the court by the social workers and a court hearing will be scheduled for the adoption.
FOR A VERY LONG TIME, THERE WAS NO INTERNATIONAL AGREEMENT OR UNIVERSALLY ACCEPTED LIST OF RULES AND PROTOCOLS TO DEAL WITH INTERNATIONAL LAW BETWEEN MULTIPLE COUNTRIES CONCERNING DOCUMENT SERVICING RELATED TO COMMERCIAL AND CIVIL JUDICIAL ISSUES. THERE WAS A NEED OF SUCH AN INTERNATIONAL CONVENTION TO PREVENT COMPLICATION OF SERVICE PROCESSES.
What Is The Hague Service Convention?
The Hague Service Convention is the commonly used name for the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. It was adopted on 15 November 1965 at The Hague in the Netherlands. It is a multilateral treaty that was initially adopted by some of the Hague Conference on Private International Law members, but has been accepted by a number of nonmember states in the following years.
Why Was The Hague Service Convention Created?
The Hague Service Convention came into existence out of the need for uniform international norms on document servicing. Before the Convention was created, diplomatic and other international channels were used for servicing, although the processes and rules were not consistent over time and among states. States that have not accepted the Convention still mainly use diplomatic channels for servicing documents. The Convention sought to replace diplomatic and consular channels for document servicing and use set processes and rules for such requirements instead.
Even for the states that have accepted the Convention, the rules are not mandatory and can be superseded by other agreements among those states. This is the case with a number of states that are part of the European Union and have agreements that take precedence over the Convention for document servicing of commercial and civil matters. Some states in South America also have agreements that take precedence over the Convention rules for international document servicing. However, for most other states, the Convention is the only set of rules that exists for such servicing.
Modes Of Servicing Under The Hague Service Convention
Documents relating to commercial and civil matters of judicial or extrajudicial nature can be serviced using the rules and norms stated in the Hague Service Convention.
There are multiple modes of servicing documents under the Convention:
Central authority: This is the most accepted mode of servicing, although it can take weeks or even months for the processing to be completed by the authorities. However, this mode of servicing is completely free of cost.
Self-service: This refers to hand delivery of the judicial or extrajudicial documents to the concerned parties. The delivery is usually carried out by legal personnel such as a bailiff or an attorney. Documents may also be delivered using postal and courier services in this mode of servicing.
Service by mail: This mode is available only in some states that have accepted certain articles in the Convention. This mode can be used only if the judicial and legal authorities in the state receiving the service accept this mode of service. In some states, there is ambiguity concerning the use of this mode of service and should be used with caution.
How Many Members Does The Hague Service Convention Have?
As of 2017, the Convention has 73 members, which includes 61 member states from the Hague Conference on Private International Law and 12 non-member states. Most states in Europe and the Americas are members, as are many Asian states. Most African states, barring a few, are not yet members of the Convention; there are a few African states that are considering joining the Convention and have been discussing the details of the Convention.
Armenia, Columbia, and Moldova were some of the last countries to join the Convention in 2013, followed by Vietnam and Kazakhstan in 2016. Tunisia is expected to become a member state in early 2018.