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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 7451
Experience:  Experienced Family Law Attorney
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I live in CA and my husband is in the middle of a 2 year

Customer Question

Hi, I live in CA and my husband is in the middle of a 2 year law program. I am concerned that I will take on his law school debt. (We married in May 2013, he began school in June 2014) and I'm not sure our marriage is going to last. We have one baby, and he has no income, and has borrowed 250K for law school and expenses. What would you advise me to do if I want to seek a divorce?
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.
Good Day! I'll do my best to assist you. Please remember: I only provide general information and a local attorney should always be consulted.
A few more minutes please as I am reviewing the family codes; I'll be back shortly.
Expert:  LegalGems replied 1 year ago.
Thanks for your patience.
So California is more progressive than most states and actually has a code that deals with education specifically:
2641. (a) "Community contributions to education or training" as
used in this section means payments made with community or
quasi-community property for education or training or for the
repayment of a loan incurred for education or training, whether the
payments were made while the parties were resident in this state or
resident outside this state.
(b) Subject to the limitations provided in this section, upon
dissolution of marriage or legal separation of the parties:
(1) The community shall be reimbursed for community contributions
to education or training of a party that substantially enhances the
earning capacity of the party. The amount reimbursed shall be with
interest at the legal rate, accruing from the end of the calendar
year in which the contributions were made.
(2) A loan incurred during marriage for the education or training
of a party shall not be included among the liabilities of the
community for the purpose of division pursuant to this division but
shall be assigned for payment by the party.
(c) The reimbursement and assignment required by this section
shall be reduced or modified to the extent circumstances render such
a disposition unjust, including, but not limited to, any of the
following:
(1) The community has substantially benefited from the education,
training, or loan incurred for the education or training of the
party. There is a rebuttable presumption, affecting the burden of
proof, that the community has not substantially benefited from
community contributions to the education or training made less than
10 years before the commencement of the proceeding, and that the
community has substantially benefited from community contributions to
the education or training made more than 10 years before the
commencement of the proceeding.
(2) The education or training received by the party is offset by
the education or training received by the other party for which
community contributions have been made.
(3) The education or training enables the party receiving the
education or training to engage in gainful employment that
substantially reduces the need of the party for support that would
otherwise be required.
(d) Reimbursement for community contributions and assignment of
loans pursuant to this section is the exclusive remedy of the
community or a party for the education or training and any resulting
enhancement of the earning capacity of a party. However, nothing in
this subdivision limits consideration of the effect of the education,
training, or enhancement, or the amount reimbursed pursuant to this
section, on the circumstances of the parties for the purpose of an
order for support pursuant to Section 4320.
(e) This section is subject to an express written agreement of the
parties to the contrary.
So the loan is assigned to the student.
As for child support and spousal support, that is based on the party's respective income. For child support, the court will also take into account the custody time share. The more time spent with the child, the less support is paid. Here is a calculator for child support: https://www.cse.ca.gov/ChildSupport/cse/guidelineCalculator
There is no spousal support calculator because the judge is given broad discretion. The general rule of thumb is that the supported party receives spousal support for 1/2 the length of the marriage, unless the parent cannot work due to childrearing responsibilities.
Factors the court may consider in spousal support are enumerated in the statute below:
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 or perpetrated by either
party against either party's child, 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 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable.
Any community property is divided equally; with debt also being divided equally, except for student loans.
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Customer: replied 1 year ago.
Do you think I should I get a postnuptial agreement just to be sure (absolving me of his law school debts?)
Expert:  LegalGems replied 1 year ago.
If the other party is willing to sign a postnup, that would be ideal, because then one will have additional protection. Of course, any postnup needs to be reviewed by an attorney - preferably separate attorneys for each spouse.
These agreements are authorized by statute:
1500. The property rights of spouses prescribed by statute may be
altered by a premarital agreement or other marital property
agreement.
Here is a case that discusses educational expenses and how it impacts the community: https://scholar.google.com/scholar_case?case=535244077943000065&q=family+code+2641+law+school&hl=en&as_sdt=4,5
Expert:  LegalGems replied 1 year ago.
Here is a link to help locate an attorney:
www.findlegalhelp.org and http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm
Of course, should you have other questions please do not hesitate to post here.
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