Beyond the considerable emotional pain, the end of a marriage is legally complex. Consult a lawyer if your marriage is ending. You will need sound professional advice to determine child custody, financial support, and to make a fair division of the property of the marital community.
In California, other possible alternatives to divorce include legal separation or annulment. Whether you chose divorce, legal separation, or annulment, your lawyer can advise you about your rights to custody, visitation, support, and property. Your lawyer can also prepare a separation agreement, assure that timely steps are taken to end your marriage, and advise you when unexpected problems arise. Your lawyer can also seek protection if your spouse threatens to assault or harass you, take your children in violation of custody or visitation rights, or hide property belonging to the marital community.
In California, divorce is now known as “dissolution of marriage.” Also, California has adopted “no fault” laws that allow a divorce without showing that one spouse was at fault. The grounds for dissolution of marriage are Irreconcilable Differences (Cal Fam Code 2310(a)) and Incurable Insanity (Cal Fam Code 2310(b)). Obviously, most California divorces are granted on the basis of the former.
A California divorce action begins with the filing of a Petition by one party (the Petitioner) and service of the Petition, and other documents, on the other party. The other party (the Respondent) has thirty-days to file a Response. Failure to respond in a timely manner may lead to a default judgment being entered, giving the Petitioner everything he or she asked for in the Petition. If you have been served with “divorce papers,” seek legal advise immediately.
Divorces may be uncontested or contested. An uncontested divorce can be granted when the parties agree on all issues such as child custody, time-share (also known as visitation), support, and property division. It may involve the filing of papers at the courthouse and, perhaps, a brief appearance before a judge or commissioner.
A contested divorce, where the parties cannot agree to terms, resembles a standard lawsuit with a trial before a judge. Typically, the trial will be preceded by one or more Order to Show Cause hearings, during which the judge will make temporary rulings concerning custody, time-share, support and, perhaps, property issues. Ex-Parte OSC hearings are typically used to obtain Temporary Restraining Orders against one of the parties. Again, if you are served with OSC papers, or given notice of an Ex-Parte Hearing, seek legal advise immediately.
In California, meditation is part of the dissolution of marriage procedure for all couples who have minor children. The couple must meet with a mediator in an attempt to resolve issues of legal custody, physical custody, and time-share. You and your spouse will meet with the mediator to discuss these issues and work out an agreement acceptable to both of you. Lawyers and judges are not present during mediation sessions and formal legal procedures do not apply. If you are unable to resolve these issues through mediation, a judge will decide them.
After the judge grants a divorce you may have to wait a short period before remarrying. In California, the earliest possible date for remarrying is six months plus one day after the date of service of the Petition.
Divorce also has important tax consequences. Custody can affect your taxes, including your right to claim head of household status, dependent exemptions, child care credit. Support payments may be taxable or deductible. Property division may also affect your taxes. Your lawyer also can advise you about the tax aspects of divorce.
Divorce is emotionally and financially complex. It is important to see a lawyer to protect your rights and your future. Your lawyer may help you to save your marriage by referring you to a marriage counselor. If divorce is unavoidable, your lawyer can help you take the steps to end your marriage and advise you about custody of your children, support, and a fair division of property. Call today for a free consultation.
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FAMILY LAW FAQ
What are valid grounds for divorce in California?
California has a no-fault or “irreconcilable differences” basis for divorce. This basically allows either husband or wife to file for divorce if either one believes that the marriage has broken down, even if the other party does not desire a divorce. This allows the parties to focus on issues such as child custody and visitation, spousal or child support, and property division, instead of proving that one party is at fault for causing the divorce.
How does the divorce process work?
The divorce process begins once the paperwork is filed in court. Nothing happens in the process unless someone moves the case along. The courthouse stores, but does not process your paperwork for you. They simply stamp the documents and keep the records. This means that no one in the courthouse will tell you what needs to be done or how to do it. Either you have to figure it out on your own or hire a lawyer to help you.
The first step in the divorce process is filing and serving the documents. This starts the waiting period. The next step is to determine whether temporary relief is needed. In other words, if you need some type of financial support, an order to sell your house, an order to determine custody of the children, or an order allowing you to move out of the state, you need to ask the judge to make the order. This is done by filing an “Order to Show Cause.” The person filing the Order to Show Cause usually has the burden of proof.
How long does a divorce take in the state of California?
A divorce in California always takes a minimum of six months. This is called a “waiting period.” The waiting period is to make sure you and your spouse do not change your mind about going through with the divorce. The courts want to give you time in case you decide to reconcile. You cannot get a divorce in California until the waiting period has expired.
When does the waiting period begin?
The waiting period begins in a California divorce once the divorce papers are filed and served. Thus, even if you and your spouse are separated for years, the waiting period does not start until the divorce action is filed and the papers are properly served upon the other party.
Is there any way to speed up the divorce process?
No. A divorce always takes at least six months to complete. Sometimes the parties agree to all the terms of the divorce before the six months has run. In this case, the parties can prepare and finalize a divorce judgment before the six month waiting period expires, but they will not be divorced until the six months had run. Even if a judgment is prepared before the six month waiting period expires, the terms of the agreement are still binding on both parties. They are just not free to remarry until the six months have run.
Other times, people do not resolve all the custody, visitation, child support, spousal support, and division of property issues within the six month time period. In this case, a divorce will take longer than the six month time frame because the parties have a right to litigate the terms of their divorce and resolve the issues before a judicial officer
How are assets divided?
Because California is a community property state, all assets and liabilities acquired during marriage are presumed to be community property and are split evenly between the parties. Nevertheless, the court will often divide property in a manner which one party does not approve of, particularly if separate property is involved. This is why it is important to have representation that can present your arguments and desires regarding property division to the court.
Who will get custody of the children?
California uses the standard of “the best interests of the children” in order to determine who the primary caregiver will be. This often results in both parents having some custody of the minor children, and in some cases, joint custody. If custody and visitation becomes an issue between the parents, mediation is often employed in order to reach agreement between the parties. If no agreement is reached, the court can impose the recommendation of a mediator, or decide upon a different solution based upon “the best interests of the children”. In some instances, litigation may be required in order to reach a solution to intractable differences.
How are spousal support and child support determined?
Spousal support is determined on a case by case basis, based upon the following principals:
- Earnings capacity of the parties
- Contributions each party has made to the marriage, including one party’s help in supporting the other while getting an education or maintaining a career
- Supporting party’s assets and ability to pay support
- The assets and separate property of each party
- How long the marriage has lasted
- The ability of both parties to achieve gainful employment
- The education and work experience of the parties
- The relative ages of the parties
- Standards of living during marriage
- The goal that the supported party become self-sustaining within a reasonable period of time
- The balance of the hardships to both parties
These factors make clear that the court has a wide range of discretion when awarding spousal support.
Child support is based upon guidelines established to calculate the appropriate amount of support in a specific instance. Factors which are used in this calculation include the income and expenses of both parties and the amount of time which the children spend with each parent.
What is the difference between a legal separation and a divorce?
There are several differences between a legal separation and a divorce. There is no waiting period in a legal separation, and you do not have to be a legal resident of the state. All property is divided, child support is ordered, spousal support is ordered, custody and visitation are resolved, and a divorce judgment is entered at the end of the case, except that the parties are not divorced in the end. Additionally, both people must agree to a legal separation or the proceeding will automatically end in divorce.
If I do not want a divorce, can I prevent my spouse from getting one?
No. California is a no-fault state. This means that anyone can get a divorce in California at any time, for any reason. If one spouse does not want a divorce but the other one does, the court will grant the divorce over the objection of the other spouse. This is called “irreconcilable differences.”
What do I do if I am served with divorce papers?
If you are the one who has been served with divorce paperwork, you need to know that you have 30 days to file a “Response” with the court. This is a document which tells the court that you are interested in the outcome of the proceedings, that you wish to be notified of any court date, and that you will be participating in the divorce process by appearing in court to help the judge make his/her decisions.
What happens if I decide not to file a Response?
If a Response is not filed, the matter is decided by “default.” This means that the court decides the outcome of the case based upon only one side’s versions of the facts. Thus, when there is property or children involved, it is very important to file a Response.
What happens after I file my Response?
After the initial paperwork is filed with the court, each party then has a right to conduct “discovery.” This allows each party to ask the other person questions and may require each party to produce written documentation about his/her income, assets and debts, or about any other information which may be relevant to the case. After the discovery process is complete, the divorce case is ready to be set for trial. Once again, nothing happens unless one or both of the parties cause it to happen. For instance, the Response will not be filed by the court, the Default will not be entered, discovery will not be conducted, and the case will not be set for trial unless the proper paperwork is filed and served.
At the divorce trial, each party will go in how front of a judge and present evidence. After hearing all the evidence in a case, the judge will make a decision and declare each of you divorced.
How much will a divorce cost?
There is no way to accurately predict the cost of a divorce. The reason for this is every case is different. Specifically, the amount you spend on a divorce attorney depends on two factors: how complicated the issues are and how much the parties litigate.
Is there any way to get divorced without having to go to court?
Yes, if both you and your spouse are able to agree on all issues in your California divorce, meaning child custody, child visitation, child support, spousal support, division of property, division of any pension plans, and division of debts, you can avoid litigation. You can simply have someone write up a divorce judgment, sign it, and be done. This is usually the best outcome.
If there is a mistake in the divorce judgment, can it be corrected?
Not necessarily. Normally, the terms of a California divorce are final and cannot be changed. However, sometimes you can obtain a modification of a divorce judgment. There are some aspects of a divorce judgment which can always me modified; these include child custody, visitation, child support and spousal support issues. Correcting a mistake made in a judgment is much more difficult.