Just a few days after announcing their separation, Megan Fox filed for divorce from husband Brian Austin Green.
Love, Separation, and Divorce
According to Fox, 29, when the couple first met in 2004, when the Beverly Hills, 90210 alum guest starred on Fox’s ABC sitcom Hope & Faith, “it was like magic.” Green,42, is 13 years her senior, and realizing her youth, the two called off their three-year engagement in February 2009. At the time Fox told US Weekly, “Marriage isn’t a realistic goal for someone who is 23.” But in June 2010, Green asked her again. Just 24 days later they said “I do” at the Four Seasons in Hawaii.
According to sources close to the couple, the two called it quits about six months ago. They cited their separation date as June 15 and filed for divorce just last week.
Date of Separation
When it comes to a courts’ consideration, the date of separation becomes important for determining property interests. As much as you might want the court to “care” about the date, it really just comes down to determining community and separate property. any property that is acquired by a spouse after the separation date is considered that spouse’s separate property, in addition to any property that was listed as separate property in the prenuptial agreement (if there was one). Property acquired during the marriage (and before the date of separation) is considered community property.
Unsure of the Date of Separation
You might not be sure of the exact date that you separated. Chances are, it wasn’t a rash decision or a date you can point to, like a birthday or a holiday. Most likely there was a lot of discussion and deciding that went into the final decision to separate. Additionally, your spouse might disagree about the day. When the date of separation is unclear, a court will use different tests to help determine the separation date.
Objective and Subjective Test to Determine Date of Separation
Objective Test: the court determines when you and your spouse started living apart from each other, or when one of you moved out of the family home. Sometimes there is no way to ensure physical separation, such as in instances when it’s too expensive to financially maintain separate residences. California Courts states: “Our conclusion does not necessarily rule out the possibility of some spouses living apart physically while still occupying the same dwelling. In such cases, however, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.”
Subjective Test: the court determines when you or your spouse think the marriage was over, or when you both decided you no longer wanted to be married to each other. For this “test,” the court looks at your conduct toward each other to determine the end of the marriage.
Once a court determines this date, it will be used for the divorce process and any property division that is required to reach a divorce settlement.
Citing irreconcilable differences as the reason for their divorce, Fox and Green also did not sign a prenup. Accordingly, their assets will be split evenly, while Fox will pay Green’s spousal support. Green has not been able to work much since he and Fox were involved in a head-on collision with a drunk driver last December.
Determining Spousal Support
Spousal support, also known as alimony, is when a payment is made by the spouse with better financial standing or the ability to support the spouse in a lesser financial standing for a period of time. California law dictates that spousal support be determined by a court after careful review of numerous factors. Common factors include: the length of the marriage, the incomes and ages of each spouse, the marital standard of living during the marriage, and the assets available to each party after the divorce is final. An attorney can provide you with further information as you work to determine necessary spousal support.
Length of Spousal Support
The court determines the duration of spousal support. The court determines this by following certain general equitable principals and guidelines most often set forth and determined by common law case histories.
A general rule of thumb is that spousal support lasts for half the length of a less than 10 years long marriage. In longer marriages, the court will not determine the duration of the alimony. Rather, the burden falls to the party who pays to prove that spousal support will not be needed at some point in time in the future.
1990s Duration of Alimony
The duration of alimony was linked to a transition period from married to single life in the late 1990s. Circumstances vary from case to case, but the courts rarely favor “lifetime support.”
One appellate court put it this way:
“As recognized by our Supreme Court, the public policy of this state has progressed from one which entitled some women to lifelong alimony as a condition of the marital contract of support, to one that entitles either spouse to post-dissolution support for only so long as is necessary to become self-supporting.”
While awarding permanent spousal support is rare, the court will consider a controlling statute when establishing permanent spousal support.
The Controlling Statute states the following:
4320. In ordering spousal support under this part, the court shall consider all of the following circumstances: (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) 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.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.
Joint Custody for Fox and Green
Fox and Green are seeking joint physical and legal custody of the two sons the couple shares, Noah, 2, and Bodhi, 18 months. Green has a child from a previous relationship.
Best Interests of Child
California child custody judges consider the best interests of the child when making their decisions regarding custody of the child. A judge is not permitted to give preference to a parent based on their gender. California law has two specific guiding policies when determining a child’s best interests:
- the health, safety, and welfare of children must be a court’s primary concern,
- children benefit from frequent and continuing contact with both parents
- A judge will weigh any relevant factors within these two parameters when making their judgment regarding each individual case.
Joint Physical and Legal Custody
California law favors joint physical and legal custody, but this is only when parents agree to do so. If parents do not agree to this, then the court will develop a parenting plan that is in the child’s best interests. A judge must provide a written explanation if they do not rule in favor of joint custody if a parent requests it.
Parents, of course, are able to put together their own parenting arrangements. In fact, it is required by California law that parents unable to reach an agreement must attend mediation prior to going to court. If the parents are still unable to agree in court, a judge will determine custody.
According to California law, if a child is mature enough to make an intelligent choice regarding custody, then the courts must consider that choice. A specific age is not required by law, but it makes sense that the older the child, the most likely he or she will be able to provide a mature decision.
Working with a Family Law Attorney
During the divorce process, there are a number of things a family law attorney can advise you on. For advice on child custody, spousal support, legal separation, and divorce you need the expert law firm of Korol and Velen, certified family law specialists. Schedule a free consultation today.
Law Offices of Korol and Velen, Certified Family Law Specialists
6300 Wilshire Blvd., Suite 1430,
Los Angeles, CA 90048