Join us as we sit down with California Family Law Attorney, Joseph Willmore, to discuss the most important differences between Oregon and California divorce laws. In this interview, Joseph answers the following:
If you would like to speak with one of our family law attorneys, please call our office at (503) 227-0200, or visit our website at https://www.pacificcascadelegal.com.
To speak with Joseph regarding your California family law matter, you can contact him via his website: https://www.willmorelawfirm.com/
Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.
Steve Altishin 0:28
Hi, everyone. I'm Steve Altishin, Director of Client Partnerships here at Pacific Legal, and today we are here with Attorney Joseph Willmore. We're going to talk about the important differences between California and Oregon laws. So Joseph, how're you doing today?
Joseph Willmore 0:48
Yeah, good morning, Steve. I'm doing great. How are you?
Steve Altishin 0:50
I'm doing well. Sun's out, can't complain. So, you know, before we start,why don't you just tell us a little bit about yourself.
Joseph Willmore 1:00
All right, Steve. So I am based in San Diego, we service all of Southern California with regard to family law issues. Of course, as you know, the bread and butter of that is divorce, but it encompasses every aspect of the familial life. That, of course, can include non-married people with regard to child support and child custody issues, restraining orders, prenups, postnups, post judgment divorce issues, post divorce support modifications, judgment enforcement's when people don't do what they're supposed to do, and contempt as well, when you want to have that overlap into criminal when people don't do what they're supposed to do.
Steve Altishin 1:52
That's the full deal, I like that. How long have you been doing it?
Joseph Willmore 1:59
I have been a divorce attorney for a little over 10 years now. In California, we have essentially levels of attorneys, so to speak, so I'm a certified family law specialist. So that means I am certified by the state bar as a specialist in the area.
Steve Altishin 2:17
I love it. Well, you know, I would say you're too young to have been doing it for 10 years, but everybody looks young to me!
Joseph Willmore 2:24
Especially in California, you don't know what's real, do you?
Steve Altishin 2:29
Well, this is actually perfect, because our topic today, I really wanted to get into this because, you know, as a family law firm, sometimes get calls from people who are thinking about they need to get a divorce, but maybe it needs to be in California, or maybe they're thinking of moving to California, or their spouse is in California. So all kinds of different reasons. And, you know, I know that a lot of the rules and the laws are similar. But I imagine there gonna be some quite different rules that could potentially have a major impact on the way a divorce is handled in California. So let's kind of start at the beginning with filing. You know, are there any jurisdictional or resident residency requirements that people should be aware of?
Joseph Willmore 3:22
Yes, Steve, there are a number, and California actually has one of the easiest loopholes if you want to have jurisdiction here in California. And our way, essentially our foot in the door here, if you don't want, rather I should say, if you don't meet the residency requirements, is to initially plead it as a legal separation, which is the same process as a divorce except you're not actually divorced, you're just legally separated. But you plead it in the alternative as a dissolution or divorce as well, and that's your sneaky way to get into California court to have California have jurisdiction over your divorce. Now, typical residency rules, otherwise, if you don't do it in that fashion, is of course, a minimum residence in California for at least six months, and in the county where you file for at least three months of living there.
Steve Altishin 4:23
Oh, okay. That's different a little. So if you're married, if your marriage was in California, and then you moved out, does that six months still apply?
Joseph Willmore 4:36
Yes. So if you left California in a month, and then the month later you want to get divorced, California does still have jurisdiction.
Steve Altishin 4:45
Got it, got it.
Joseph Willmore 4:46
Even if you're not physically in California. And I'll take it a step further, especially how transitory the world is now with, you know, one spouse that may have moved away.So long as one person is living in in the state, we still have jurisdiction, and we can just deal with all issues of the divorce.
Steve Altishin 5:06
I like that. But, like you saids separations in California are handled a little bit differently. And that six month thing doesn't apply.
Joseph Willmore 5:16
Steve Altishin 5:17
So I take it you could file, get started, and then look into the alternative, which is we're gonna get divorced?
Joseph Willmore 5:27
Correct. So actually, when we do this, we always plead it on the initial petition. So it's already indicated that in the alternative, we would go that route. But of course, we don't check any of the boxes for residency requirements simply because the parties haven't met that requirement. The soonest you can even get divorced in California from the date you file is six months, and by that time, you will meet the residency requirements as well, and the time period has already elapsed as well.
Steve Altishin 5:58
I get it. I get it. You know, Oregon used to have have that rule, but I think that one got abolished. So let's look at fault. You know, I know that California is a no fault state.
Joseph Willmore 6:10
Steve Altishin 6:11
Most of the country, not all, I think it's probably pretty close, is a no fault state. What does that mean in California? Because I know in some states, that means something a little different.
Joseph Willmore 6:21
And it's interesting to me when I do deal with overlap issues and other states that do consider fault. Of course, infidelity, things of that nature, have not been considered in California as fault based since, I believe, don't give me the exact year, but I believe it's 1972. So the reason in California, at least at the time, was the court was spending too much time litigating who did what, who cheated on who, the evidence of that. And at the bottom line, the courts here said, Well, you know, does that really matter? And in the end, they said, No. So at that point, fault based infidelity, things of that nature, are no longer a factor. Now, if you want to raise those issues, you can really only raise it with regard to a breach of fiduciary duty. So if you had say, misappropriated marital money, spent 10s of 1000s of dollars funding an affair, the spouse could certainly go after that in order to recoup the misappropriation of marital money. There are only very limited circumstances, of course, where you can kind of argue that, or where that would be successful, or where you could bring up things that are fault based of that nature.
Steve Altishin 7:50
Yeah, that's pretty close to Oregon. Oregon, I think maybe it's a little bit more open in terms of the ability to use bad acts, bad financial acts, as affecting the settlement, affecting property distribution, that kind of stuff. Now, I know one of the big differences, you know, between California and Oregon property law is that Oregon is a common law property state, California is a community property. I imagine that difference affects divorces, and how divorces in California are determined, at least in terms of property.
Joseph Willmore 8:37
Here's my take on that actually, is I know community property sounds scary to a lot of people. And there's a lot of misunderstandings of that. So a lot of people will look at it as well, gosh, if I get married to this person, half of everything I have is now there's and that is not true. So all the assets you had prior to getting married do remain your separate property. However, everything you acquired during the marriage is subject to community property law, and would be divided. So one of the examples I use to try to bring clarity to this is if, say, husband has $100,000 in his retirement plan prior to getting married, gets married, and during the marriage, he accumulates another $100,000 in that retirement account. So now we have $200,000. The spouse's separate, get a divorce, what is wife entitled to? Well, the community interest is only $100,000 because that was acquired during the marriage. Split that in half and the wife's entitlement is $50,000. I think the common misconception that a lot of people think is that wife would have been entitled to $100,000 because that was one half of the total balance of that account. But I look at community property laws as very predictable. So it's one of those factors. So here in California, where it's actually, you know, everybody thinks California is extremely litigious, which it is. But community property law really narrows down what you can fight about, because generally speaking, taking a divorce to trial on certain property issues simply does not make sense because you can predict the results. And you know, the judge is going to be bound by what the law says. You can always determine when assets were acquired, it's very easy to trace these things. So it's really only in those highly contentious matters where there's just no reasonableness or rationality that they try property issues of that nature.
Steve Altishin 10:49
Right. And that is a little different. Oregon has that equitable distribution, where judges actually can go in, even though it's not common, then take separate property and give it to the other party. Yeah, doesn't happen a lot, but it's that kind of fair versus equal.
Joseph Willmore 11:08
And to me, honestly, I think that sounds scarier, because like I said, with community property law, it's just so predictable.
Steve Altishin 11:15
It absolutely is. So is the marital property split 50/50, or can it be split 70/30 or something?
Joseph Willmore 11:29
Something that I tell clients is that if you want to truly tailor your divorce, to get assets without, you know, cutting everything in half, then settlement is your best option to tailor that. Because ultimately, if we go to trial on a case, a judge will take things asset by assets, and that can result in something that the clients don't necessarily want. For example, if we have a house that was purchased during the marriage as purely community property, both husband and wife clearly have a one half interest in it. If one of them wants to keep it, they really don't want to go to trial, because that judge is just going to order the house be sold and they split the proceeds. So again, as far as tailoring settlement, you can always offset somebody's interest in something else by giving one of them more of this, and the other one gets less of something else. But that's really accomplished by a negotiation of settlements, because trial judges don't care about that.
Steve Altishin 12:35
It sounds like this is the way it is, and if you want it different then you guys have to go out there and figure it out.
Joseph Willmore 12:41
Steve Altishin 12:42
I like that. Which kind of leads into, you talked about how you do Prenuptial agreements. Everybody always wants to know, you know, is a prenuptial agreement really enforceable? And so I know that in some states, there are laws that really make it pretty darn enforceable and other states a little more open. What's California like?
Joseph Willmore 13:09
So California, and it's explicit in California's Code of Civil Procedure, they really want to enforce written agreements. So from a general standpoint, and you'll want, of course, to have a good attorney to draft that prenup, because you also want to make sure that the clauses you have in there are enforceable and will be enforceable at the time of divorce. So the main reason for invalidating a prenup will be, well, there's a few reasons I would say. The number one reason is that it is not conscionable to enforce that prenup at the time that you're asking them to enforce it. So an example of this, and we need extreme examples, because it's extreme situations when this really happens, is say husband and wife get married. In this case, there was a spousal support waive,r meaning neither of them could request spousal support at the time, if they were to get divorced. And 20 years passes and husband has a catastrophic injury and is paralyzed, he can never work again. They get divorced. In a situation that extreme, a court is highly likely to say this clause in this prenup is extremely unconscionable because this man can no longer work, it would be impossible for him to support himself. So based on this unforeseen x, this unforeseen event, the court would likely strike that clause in that situation. Another example is lack of financial disclosures. So if both husband and wife, or I should really say Husband and husband or wife and wife, whatever the situation may be, if they don't disclose their financial situation, meaning break down all of their assets and debts, when they're discussing and negotiating a prenup, that is also a strong reason to invalidate it. Because of course, the reason for that is the other person didn't know what they were contracting to, because they didn't have access to all that information.
Steve Altishin 15:24
That makes complete sense. What about property in let's say, Oregon, as an example, that the couple owns. They're in California, and they have a divorce. How is that property treated? I know that Oregon has a rule that basically says, if there's property in another state, we look at that state's kind of property rules to figure out what to do. How's California on that?
Joseph Willmore 15:56
We do not. So we apply our laws within the family code here, regardless of where the property is located. So here in in San Diego, or, you know, most of Southern California, for that matter, oftentimes we even have property issues that overlap Mexico, or I've dealt with issues in Europe as well. And all assets they have are considered marital property, regardless of where it is located. Now issues of enforcement can arise, which we've dealt with on a number of cases previously, one in particular comes to mind. And it was a case with a lot of assets in Europe. And in this case, in order to secure and rather, I should say, these assets were not in my client's name as well. So in order to secure settlements, it was absolutely critical to make sure those assets were either jointly titled prior to agreeing and signing off on anything and actually dividing assets here as well, just to make sure that we secured my clients interest in those assets. So again, we have jurisdiction As far as, of course, issuing a subpoena in Europe, they're going to throw it away. But if we can at least secure those assets, we at least have our clients in a safe spots where we can say, all right, well, these marital assets are all safe, we can divide them and the client will be able to move on.
Steve Altishin 17:26
I like that. I like that. Okay, let's move on to support. Support is obviously a big deal. And so we'll kind of just start real quickly on child support. In Oregon, you know, we have a calculator. And you know, you can deviate a little bit from it, but it really is all about the math, pretty much, when it comes, at least, to child support. And, you know, I know that child support can be really contentious. I'm paying too much, you're not paying enough. And it kind of is what it is in Oregon. How does California deal with child support?
Joseph Willmore 18:08
Well, child support numbers are shockingly, extremely high here on average. So when I do look at figures that we calculate here in California, compared to other states, I can say it's generally quite a bit higher. California bases that on cost of living standards. So again, when we talk about jurisdiction issues as well, it is something that courts can factor here, if the child say, moves away with one parent to another state, yet California still has jurisdiction over the matter. Of course, they consider factors such as that to why California support levels should or should not be enforced. But a few things, you know, you mentioned that Oregon, the judges can actually deviate from from the formula that they calculate, is that correct?
Steve Altishin 18:58
Yeah, a little bit.
Joseph Willmore 18:59
Okay, so here in California, judges are prohibited in the family code from deviating from what is calculated. So what that leaves us as attorneys to do is argue what should and should not be considered income, what deductions may apply, and really nickel and diming the exact number for parenting time. Of course, it's always parties don't win. Say, for example, there's an equal time share between mom and dad. And the general public would say, well, if they have equal time, neither of them owes the other person support, child support. However, that's not how the law works here, of course. So if one parent say makes $10,000 a month, the other parent makes $20,000 a month, and they have an equal 50/50 time share, that parent that makes $20,000 a month is going to pay off child support to the parent that makes $10,000. The legislature states that that is fair because the child is entitled to the same lifestyle in both households. Really the only way the courts, or rather I should say the the circumstances, where deviations from this guideline support figure can occur is in situations of extreme wealth. And of course, you can guess very few people qualify for this. We have, there's maybe a few celebrities, maybe Elon Musk here, but I think he moved to Texas. So there's very few situations where the extreme wealth exception will apply to deviate from guideline child support.
Steve Altishin 20:51
Okay, so spousal support. You know, all of us in these other states or expect it, it used to be the big thing we would notice about California divorces, these, you know, spousal supports. I mean, that was front page news. And so I did look a little bit on California and how they kind of do spousal support, and it is a little different in Oregon. So can you kind of go through the different kinds of spousal support that people can get, and how its measured, and how long it lasts?
Joseph Willmore 21:32
Okay, so you said it correctly that spousal support figures, shockingly, are also very high here. One of the big differences however, between child support and spousal support, is spousal support is where judges do have tremendous latitude in their discretion on how they want to order it. And I can tell you, I've, of course, been before every judge, every family law judge here in San Diego County, a lot of judges throughout all of Southern California, for that matter. And we as attorneys learn which judges really, their biases that they have, judges that you know are always going to order higher levels of support. And those judges who, you know, if you're representing the lower earning party, they're not gonna be very generous. So it's really a matter of phrasing these appropriately. Learning the judges, learning what they really factor in, in order to tailor our cases and our clients, in order to showcase the various need basis. Or if you're representing the higher earner, why that other person has an earning ability, maybe not living up to it, and so forth. As far as length of spousal support paid, any marriage in California greater than 10 years or greater is considered a long term marriage. And in the family code, there is no set end date for spousal support. Now, as general public policy, it is generally looked at as a reasonable time period for a person to, say, become self sufficient and self supporting. That's generally looked at as half the length of marriage, but again, for a marriage 10 years or greater, that presumption doesn't exist. Now, for a marriage less than 10 years, the family code prohibits the judge from ordering spousal support beyond half the length of marriage.
Steve Altishin 23:41
It's then incumbent on the person paying, I take it, to go back into court and showing that this has occurred? Is there a presumption of any sort when that happens? I mean, is it, you know, is it like more probable to show a change of circumstances, or is it more like, okay, it's been this way for years, let's not favor either side and look at the numbers now.
Joseph Willmore 24:13
Okay, so I'll give a few examples here. So if we have a marriage that say, for example, is five years, and both spouses are in their 30s, but we had a wife that was a stay at home mom during that time, husband had the ability, of course, to work full time, further his career and so forth. It's a good chance that we'd call it interim support. So temporary support would be very high. So the judges can still use the same calculation that they use to calculate spousal support to calculate child support, and it'll show a guideline number, which is going to be quite high in this situation. It's highly likely a lot of judges would order that guideline, high temporary support figure. Now for a marriage of just five years, the stay at home mom in this situation is only going to be looking at two and a half years of spousal support. So of course it is absolutely, it's going to be absolutely necessary for her to obtain some job skills or reintegrate into the job market at that point. And a situation like this, it's unlikely that they would have to come back to court if they both have at all even reasonably sophisticated attorneys, they should be able to settle that. However, even if that case were to go to trial, it's likely that husband in that situation would pay higher support for two and a half years. But at the time of trial on that matter, it's highly likely that that Judge will just order this spousal support, it's going to elapse this entire two and a half year period, it automatically terminates at a two and a half year mark. I could give an example on the other end. Whereas if we have say, a 30 year marriage, and parties, husband and wife, are getting divorced in their 50s, we have a much different situation here. So say we have a similar example, we had a stay at home mom who raised children, of course, now they are say adult aged at this point, husband worked that entire 30 year marriage and supported the family. The husband's not in a great position when it comes to support here. Now we have ways of ensuring or trying to get a person to become self sufficient. And in California, we call those Gavron warnings, and that's where the party who would be receiving spousal support is ordered by the court, like this is your notice that you need to take steps to become self sufficient, self supporting within a reasonable period of time. Again, reasonable, we're gonna say half the length of marriage, so 15 years. So say the wife in this situation is 50 years old. I believe a Gavron, one in most situations, would occur in that situation, because we're looking at at least 15 years of still working life left and her there's no imputation of income for purposes of calculating spousal support until a person is over 65. So we're looking at that 15 year period of wife taking steps to become self supporting. Now, if I were advising husband, in this case, the payor of spousal support, I would say, well, we're gonna ultimately have support orders in place, it's highly likely the court will say we do have a gavel warning issued for wife. It's really upon him, roughly, to look at every five year mark as well. I'm gonna have to file a post judgment support modification, because five years has elapsed, the wife in that situation should have taken reasonable steps. It's hopeful that she would have and you know, at that point, if we look at the evidence, and she has not taken those steps, the judge can also consider that as a means of well. You didn't do what you were supposed to do, so we're not going to keep support this high. We're going to start with downward modifications. Now termination of spousal support in those situations, I would go so far to say slim to none. I would say the absolute soonest husband in this situation for a 30 year marriage would even be able to enjoy the possibility of that is after 15 years has passed, just given how long that marriage is.
Steve Altishin 28:52
Wow. One thing, and I know, it's unbelieve, this is so important but it goes so fast, so we're almost done. But I want to talk just for a second about taxes on support. It's confusing, and it was made a little more confusing, because of 19-whenever it was, when they changed the federal rule on spousal support. But what is the rule in California, and really specifically, the state rule when it comes to, let's say, spousal support, and who pays and who gets the deduction, if anybody?
Joseph Willmore 29:30
Well as you stated, the federal tax laws apply here and previously, prior to the change in the tax code, where the payor of spousal support was able to claim it as a deduction and of course, it was taxable to the recipient spouse. That really made it advantageous for us previously to negotiate equalizing payments. So a one time settlement payment to who would have been the recipient spouse in lieu of them agreeing to waive spousal support. So we don't really have that negotiating chip anymore, as far as here, take some money and go away, which would be a lesser amount than what you may have received in spousal support. But it's also a lump sum of cash versus payments over several years that you may or may not receive, based on where you have that assurance of payment. So that certainly affected things to a degree. But obviously, when we calculate, again, guideline numbers, so if we turn to this calculator and run support numbers, since that payor is paying support, support numbers did go down, but the court certainly does factor that instance, they no longer can deduct that, since they're paying the full tax on all of that. Now, I guess you and me aren't CPAs. But we can assume that maybe the IRS wanted to tax the higher earner because they were in a higher tax bracket as well. But you know, of course, those practitioners were the ones that are left to deal with the consequences and how it affects our clients and, you know, when taking steps to at least try to negotiate settlements, what advantages or disadvantages that offers our clients.
Steve Altishin 31:22
Yeah. Does that apply to state tax?
Joseph Willmore 31:27
Well state tax, they don't deduct support on state taxes, for support at least.
Steve Altishin 31:35
Right. Right. So we are past our 30 minutes. But is there something we missed? Is there something that, you know, kind of a final thing you would want to say to someone that they're contemplating either getting the divorce in their state, or in California, that we just didn't touch? Or did we catch most of the big stuff?
Joseph Willmore 31:56
I think we caught a lot of the big things. I think it's important for people, especially when spouses maybe reside in two different states, that they consult with people in both states. I think that's absolutely helpful for people. I think taking some of the principles that we talked about today certainly should at least help people make decisions even without talking to people as far as which side of the spectrum they may fall on.
Steve Altishin 32:24
Exactly. And on that note, would you like to tell people how they can get in touch with you?
Joseph Willmore 32:32
Absolutely. Always welcome to give our office a call, our phone number is 619-550-6738, or visit us on our website, willmorelawfirm.com.
Steve Altishin 32:49
Love it. And so, Joseph, thank you so much. You bring knowledge, experience, you talk about stuff that's complex and difficult, and you make it sound understandable, even to someone like me, and that's very much appreciated. So thank you for joining us today.
Joseph Willmore 33:08
All right, Steve. Thank you for having me.
Steve Altishin 33:10
Oh, I love it. And you know what? I want to do it again. I want to get into retirement and how they're affected in divorce. Nothing better than a good talk about a QDRO.
Joseph Willmore 33:23
I'm sure people will be delighted to hear that.
Steve Altishin 33:26
So everyone else, also, thank you for joining us. Until next time, stay safe, stay happy and be well.
This has been Modern Family Matters, a legal podcast focusing on providing real answers and direction for individuals and families. Our podcast is sponsored by Landerholm Family Law and Pacific Cascade Family Law, serving families in Oregon and Washington. If you are in need of legal counsel or have additional questions about a family law matter important to you, please visit our websites at landerholmlaw.com or pacificcascadefamilylaw.com. You can also call our headquarters at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering legal solutions important to the modern family.