What To Do About Student Loan Debt During Divorce

With student loan debt on the rise, spouses filing for dissolution may need to know how to characterize their debt and payments.  What happens when one spouse works during the marriage so the other can attend school?  What if a significant amount of community funds were used to pay down student loans?  Is there a reimbursement right? What if there is an outstanding balance owed at the time the parties dissolve their marriage?  These are important questions to ask when you are filing for divorce and either you and/or your spouse have student loan debt.

Any loan incurred during marriage for a spouse’s education or training which remains unpaid at the time of dissolution or legal separation must be assigned for payment to the spouse who obtained the education or training and is disregarded in effecting a net equal division of the community estate.  In other words, the unpaid loan cannot be included amount the community liabilities for purposes of a property division.

Regarding the issue of property rights, reimbursement for community contributions and assignment of loans pursuant to Family Code Section 2641 is the exclusive remedy of the community or a party for the education or training and any resulting earning capacity enhancement of a spouse.  Notwithstanding community expenditures toward a spouse’s education or training, the community cannot acquire an “interest” therein because a spouse’s professional education or degree is not divisible property.  California courts have held a spouse’s professional education obtained during marriage—even if paid for with community funds—is not community “property” capable of valuation and division at dissolution.

Nonetheless, when one spouse works so that the other can attend school, it is usually with the expectation that the community will benefit therefrom after the education is completed, thus obtaining a “quid pro quo” for the community’s investment.  If the marriage is dissolved before the community can realize the benefit, Family Code Section 2641 recognizes a right of reimbursement in property division proceedings to redress the economic inequity.

While there are some statutory limitations, upon marriage dissolution, the community “shall be reimbursed” for its contributions to a spouse’s education or training that “substantially enhances” the spouse’s earning capacity. While California courts have held there is no presumption that a legal, medical, accounting or other professional degree will result in a substantially enhanced earning capacity as a matter of law, unfortunately there is little guidance on what is meant by “substantial enhancement” of a student spouse’s earning capacity.

Who is Responsible for Supporting Incapacitated Adult Children?

Both parents are equally responsible for the financial support of an adult child who is incapacitated from earning a living.

The court’s jurisdiction over child support typically terminates upon the child reaching the age of majority (18 years old) or upon graduating high school, whichever occurs later.  However, if a child is not able to financially support themselves due to a mental or physical disability, the court’s jurisdiction is extended.  The Family Code makes it clear both parents have an equal responsibility to support a child “of whatever age who is incapacitated from earning a living and without sufficient means.”

The California Legislature has not limited the application of the state child support guidelines to minor children.  Thus, the courts are free to apply the state guidelines to any child owed a duty of support by a parent.  While the general rule regarding termination of child support is when the child reaches the age of eighteen, there are exceptions for when an adult child is owed a duty of support.  Therefore, age is NOT the terminating event for adult children owed a duty of support.  Under Family Code Section 3901, a parent’s support duty continues for unmarried children who, though they have reached age 18, are full-time high school students and not self-supporting.  Likewise, the duty to support a child extends to an adult child “who is incapacitated from earning a living and without sufficient means.” [See Fam. C. 3910(a)].

This means the court can order one or both parents to continue providing child support to adult children, but only upon proof of a mental or physical disability preventing the child from being able to work; or, at least proof of inability to find a job due to factors beyond the child’s control.

The “sufficient means” standard is described by case law as the likelihood the child will become a public charge.  In addition, the courts have held that a parent’s obligation to support their disabled adult child is not automatically discharged by the fact the child receives support from independent sources–such as a support trust funded by the other parent.  In Chun v Chun (1987) 190 CA3d 589, 595, 235 CR 553, 556-557, the court stated, “It cannot be that (incapacitated adult child) must disavow her mother’s continued support, and thereby make herself a public charge, in order to establish her right to support from her father.” [parentheses added].

Parents have a statutory duty to support their adult children who are “incapacitated from earning a living and without sufficient means.”   Also, keep in mind that when parents litigate this issue in a dissolution, legal separation, or nullity action, need-based attorney fees and costs are awardable pursuant to Family code Section 2030 et seq.  So if you are opposed to your spouse requesting child support for an adult child that is incapacitated, you may end up contributing to your spouse’s attorney fees.

Enforcing Support Orders Against Out of State Party

For anyone contemplating moving from California to another state to avoid paying spousal or child support, think again.  California has adopted the Uniform Interstate Family Support ACT (UIFSA) under the Family Code (Sections 5700 et. al.), which limits state jurisdiction that can properly establish and modify support orders and addresses enforcement of support obligations within the United States.  In other words, this act makes it easier to enforce California support orders against out of state parties.

For example, California does not necessarily lose personal jurisdiction if a support obligor moves to another state.  If California is the state that issued the support order and California maintained exclusive jurisdiction, California courts have enforcement powers.  This means a California judge can issue an Income Withholding Order against an out of state obligor, which can then be served on the obligor’s employer and the employer is required to garnish the obligor’s wages.

Does this conflict with jurisdiction requirements?  Courts have said: No.

The basic constitutional restriction on the exercise of jurisdiction over a nonresident defendant is the requirement of sufficient “minimum contact” between the defendant and the forum state to make it fair to require him to defend the lawsuit there.  A crucial inquiry is whether, in view of the defendant’s forum-related activities, it is reasonable and fair to require the defendant to conduct his defense there.  In cases where California is the marital domicile, the minor children were born there, the parties lived and worked there, and the marriage was dissolved there, the courts have held California is both a reasonable and fair forum to litigate support actions against nonresident obligors.   This means one cannot move to another state to avoid paying support under the theory that California no longer has jurisdiction and the support order cannot be enforced.   This belief is incorrect and you are only setting yourself up for a significant support arrearage.  Not to mention you may be liable for paying the other party’s attorney fees…

If you are struggling to pay a support order, I recommend consulting with an attorney to discuss filing a request to modify the support order as opposed to moving out of state.

Enforcing Settlement Agreements

Oftentimes parties reach settlement agreements during the course of a court-conducted settlement conference or private settlement conference.  In order to ensure a private settlement agreement is enforceable, make sure the agreement is reduced to a writing and signed by both parties.  If the agreement is reached in the presence of the court, an oral agreement is sufficient. The authority for enforcing settlement agreements comes from California Code of Civil Procedure §664.6, which states,

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court upon motion may enter judgment pursuant to the terms of the settlement.”

This section helps to ensure one party cannot unilaterally decide they want to renege on their agreement.  However, not all settlement agreements can be entered as a judgment.  Either the agreement must be made “before the court” (judge’s chambers and arbitration both count as being before the court) or reduced to a writing and signed by both parties.

Settlement agreements reached before a mediator do not count as “before the court,” therefore, if an oral agreement is reached, make sure the agreement is reduced to a writing and signed by both parties before you leave the mediation.  And I recommend putting language in the agreement that states the terms of this agreement are binding and intended to be enforceable under CCP §664.6.

Finally, to avoid one party setting aside the agreement for failure to comply with Family Code §2015(a) (statutory deadlines for serving the Final Declaration of Disclosure), the settlement agreement should include a mutual waiver of the Final Disclosure requirement pursuant to Family Code §2015(d).

Exclusive Use and Possession of Real Property

California is a community property state, which means that any property acquired during the marriage is equally owned by the parties.  In other words, each spouse has a 50% ownership interest in community property, with equal rights of management and control…but subject to intraspousal fiduciary obligations.  (Family Code §§721(b), 1100 et seq.).  As soon as a couple makes the decision to separate and move forward with a divorce, the BIG questions is, “who will continue to live in the house?” If the couple is unable to reach an agreement, the court can assign the temporary possession of the Family Residence to one spouse.

During the pendency of a marital dissolution proceeding, a court may make orders ex parte or on noticed motion that affect the temporary use, possession, and control of the parties’ real or personal property, including determining the payment of liens or encumbrances. (Family Code §6324).  If a couple is unable to mutually agree on who may continue to live in the Family Residence and who will move out, or if issues arise with a current living arrangement, a court order may be necessary to resolve the issue of use, possession and control.

However, with this privilege comes great responsibility.  In cases where a spouse is given temporary use and occupancy of their family residence, they have a fiduciary duty to preserve and maintain the property.  There are cases where the California courts held the failure of the spouse with temporary occupancy and responsibility to maintain the mortgage payments breached their fiduciary duty in deliberately failing to pay the mortgage and refusing to put the property up for sale.  The consequences for breaching one’s fiduciary duty are serious, including an award of the lost equity and attorney fees to the non-breaching spouse. (Family Code §1100(g), (h)).

Ashley Madison and CA Divorce

Life is short.  Have an affair.  (Then get served with divorce papers).

Ah, the Digital Age.  Where you can shop for groceries, catch up with your sister who lives out of state, and have an affair, all without leaving the comfort of your own couch.

“Life is short.  Have an affair” is the catch phrase for the popular hook-up site, Ashley Madison.  My response to that mentality as a family law attorney is, “Life is short.  Get a divorce.”  If you recently found your partner’s name listed as a member of Ashley Madison, and you were not aware you had an “open relationship,” you might be reading this blog with the intention of filing for divorce and making your spouse’s infidelity an issue.

While I support your decision to leave the cheater, unfortunately (or fortunately, depending on your point of view), California is a “no fault” state.  This means the courts are not interested in the fact your spouse cheated on you through an online affair website, and would find the Ashley Madison infidelity irrelevant.  “No-fault” divorce was popularized in the United States after California passed the Family Law Act of 1969, which was signed into law by Governor Ronald Reagan (who himself had been divorced-and-remarried) and became effective January 1, 1970.

Grounds for divorce in California are obtained under either 1) incurable insanity, or 2) irreconcilable differences (aka, “everything else”).  Irreconcilable differences is purposefully broad and is offered as a general reason for the breakdown of the marital relationship.  “Specific acts of misconduct” is improper to introduce and inadmissible in court.

So keep this in mind when you are preparing your Petition for Dissolution paperwork.  While you may feel like your spouse should enter the courtroom wearing a giant, scarlet letter “A” around their neck, in California, courts may not look to “fault” in dissolving your marriage, dividing your property, or ordering support.

Jurisdiction and Child Custody Issues


The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) grants jurisdiction to superior courts to adjudicate child custody matters.  In order to have jurisdiction to make an initial child custody determination, under Family Code §3421(a), the state court must either:

1) Qualify as the child’s home state;

2) A court of the home state court declined to exercise jurisdiction on the grounds another state is the more appropriate forum, and there is a significant connection to the other state and substantial evidence is available concerning the child’s care;

3) All court’s under (1) and (2) have declined to exercise jurisdiction on the grounds another state is the more appropriate forum; or

4) No court of any other state has jurisdiction under (1), (2), or (3).

The Family Code defines “home state” as the “state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.  Parents, it is important to keep this in mind when you are filing for child custody orders in California.  If you recently moved from another state, you might want to wait until California qualifies as the child’s home state before starting a custody battle.  If the other parent recently moved with your child, California may still be able to exercise custody jurisdiction if you remained in California and it has not been over six months since your child moved away.  Where you file and when can play a very critical role when seeking child custody orders.


What about the circumstances where you had a different state make child custody orders, but you and the minor child have been living in California for over six months?  The UCCJEA allows one state to modify the custody order of another state under certain circumstances.  So long as the state seeking to modify has jurisdiction to make the initial child custody determination, that state may modify the home state’s orders if 1) the court of the home state determines a) it no longer has exclusive, continuing jurisdiction or b) that a court of the other state would be a more convenient forum; or 2) a court determines that the child, the child’s parents, and any person acting as the child’s parents do not presently reside in the other state.

  1. Initial Determination Standard

The court of the State seeking to modify another state’s original custody order must have jurisdiction under the standard of Family Code §3421(a)(1) or (2).  See above.

  1. Exclusive, Continuing Jurisdiction

Under the UCCJEA, an original decree state has exclusive, continuing jurisdiction to modify its own decree until one of the following occurs: 1) the original decree court loses significant connection jurisdiction, or 2) the child, the child’s parents, and any person acting as the child’s parents no longer live in the state.  If an original decree state has exclusive, continuing jurisdiction, no other state may modify the original orders, even if the child moves and establishes a new home state.  This is important to keep in mind if you share custody with a parent who lives outside California, and that non-California state happens to be the original decree state for custody.  If the other parent continues to live in that state, it does not matter if the child lives with you 75% out of the year and only 25% of the time with the other parent.  If you want to modify the original custody order, you will have to file in the original decree state.

  1. More Convenient Forum

An original decree state may relinquish jurisdiction if it determines that another state would be a more convenient forum.  The UCCJEA sets forth the following eight (8) factors the courts should consider in analyzing whether another state is a more convenient forum:

1) whether domestic violence has occurred or is likely to occur;

2)  the length of time the child has resided outside this state;

3)  the distance between the court of this state and the state that would assume jurisdiction;

4)  the degree of financial hardship in litigating in one forum over the other;

5)  any agreement as to which state should assume jurisdiction;

6)  the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

7)  the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;

8)  the familiarity of the court of each state with the facts and issues in the pending litigation.

If you are struggling to decide whether California has jurisdiction to make a child custody determination, I recommend consulting with a family law attorney.

Jurisdiction—Can I File in California?

Jurisdiction concerns the court’s authority to hear and determine legal matters.  In order to hear your family law matter, the California court must have jurisdiction over the subject matter, jurisdiction over the “res,” and jurisdiction over the parties (otherwise known as personal jurisdiction).

In any proceeding under the Family Code, jurisdiction rests with the superior court.  This means the superior court has subject matter jurisdiction over marital status actions, adoptions, parentage, domestic partnership actions, child custody/visitation proceedings, support proceedings, and proceedings for protective/restraining orders that fall under the Domestic Violence Prevention Act.

“In Rem” jurisdiction means the court has jurisdiction to dissolve an existing marriage located within California.  It is similar to personal jurisdiction, and the location of the marital res is tested by either parties domicile (at least one party is located in California and has the intent to remain there indefinitely).  This means you cannot take a vacation from Texas to Disneyland, swing by the local superior courthouse and file a Petition for Dissolution, and have your spouse served with the paperwork the next day when you are waiting in line for Splash Mountain.  The court does not have jurisdictional authority to dissolve your marriage during your California vacation.  However, if one spouse is domiciled within the state of California at the time of the proceeding, the court has in rem jurisdiction.  So let’s say the previous couple was married in Texas, but after they separated, spouse A moved to California.  Four months later, spouse B takes a vacation to Disneyland and is then served with the Dissolution paperwork.  In that scenario, the court would have jurisdiction over the marital res because spouse A is currently living in California.

Finally, in order to make any determination regarding your family law case, the California Superior Court must have personal jurisdiction.  Where courts are lacking this fundamental jurisdiction, there is an absence of authority or power to even hear, let alone determine, your case.  For couples who were married in California, continued living in California during the marriage, and are still living in California after separation, personal jurisdiction is not going to be an issue.  But for couples who are living in different states or recently moved to California, filing for divorce is more complicated.

The California State Legislature has empowered California courts to exercise personal jurisdiction to the “furthest extent of due process.”  [See CCP §410.10, “long-arm” statute].  This means California permits the exercise of personal jurisdiction over an individual for any one of the following:

  1. Physical presence in the state of California when personally served with process;
  2. Domicile in the forum state at the time the suit is commenced;
  3. Consent to the exercise of personal jurisdiction;
  4. “Minimum Contacts” with the state of California (there are limitations to this one, but they are not the subject of this blog entry).

Remember the Disneyland example above where spouse B was visiting from Texas and was served with dissolution paperwork during their vacation?  That is sufficient to evoke California’s authority over that person.  Even a non-resident just passing through the state, if personally served, is subject to California’s jurisdiction.  It doesn’t matter how fleeting the visit is, if a non-resident is personally served with a lawsuit while physically present within California, this state has jurisdiction to bind that non-resident to judgments and court orders.  Some of you may be thinking, ‘that is a little unfair,’ but regardless of whether this concept is right, it is a long standing legal principal and the courts will find this is a sufficient basis for personal jurisdiction.

There are certain limitations, however, such as someone who is brought to California by force or fraud.  You can’t hog-tie your spouse who lives in Nevada, throw them in the trunk of your car, drive to the California border, and have them served with dissolution papers after they regain consciousness.  While some of you reading this may have that fantasy, don’t do it.  Even if you were successful in forcing your spouse to California, or inducing them to visit for your fake cat’s fake funeral, the courts would not consider this valid personal jurisdiction.

Assuming the court has all three forms of jurisdiction outlined above, don’t forget a California court will not enter a Judgment “unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.” [See Family Code §2320(a)].  This requirement does not apply to a California marriage between persons of the same sex.  [See Family Code §2320(b)].  So make sure BEFORE you file your Petition for Dissolution, Legal Separation, Parentage, etc, that at least ONE of the parties has been a resident of the state of California for at least six months and a resident of the specific county for at least three months.