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Divorce, Separation, Custody, Child Support, Visitation, Alimony, Paternity
Phoenix San Diego
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Divorce in California is technically called dissolution of marriage. One spouse must have lived in California for at least six months to file in California, and lived in your county for three months, to file in that specific county.
There are only two grounds for dissolution in California: 1) irreconcilable differences, or 2) incurable insanity. Adultry is not grounds for dissolution. However, adultry probably constitutes irreconcilable differences.
California law requires a six-month minimum waiting period from the time the other party is properly served before the dissolution can be final. You cannot remarry until the day after your divorce is final. You can obtain a dissolution of marriage without your spouse's consent. You can also obtain a dissolution before the financial issues are resolved, which means you can remarry even though the financial issues aren't resolved yet.
Your case must be filed in the proper location (jurisdiction), depending on the area in which you live. San Diego county has four jurisdictions: 1) downtown, 2) Chula Vista, 3) El Cajon, and 4) Vista.
There are two types of dissolution in California:
1) Summary Dissolution. This is a more simplified process than Regular Dissolution, and is therefore, easier and less expensive to facilitate. To qualify for this type of dissolution the following conditions must be met: a) married for five years or less, b) there are no children from this relationship, c) neither of you own a home or other real estate, d) the value of all community property assets is less than $25,000, e) your combined debt does not exceed $5,000, and f) both parties waive spousal support. Both parties must agree to the terms of the dissolution. The downside is that either party may cancel the dissolution without your consent, for any reason before it's final.
2)
Regular Dissolution. This is a more complicated process than
Summary Dissolution, and is therefore, more complicated and expensive to
facilitate. All dissolutions that don't qualify for Summary
Dissolution must be filed as a Regular Dissolution. You might also
choose to file a Regular Dissolution if you're concerned that your
spouse might cancel the dissolution. Your spouse cannot cancel
this dissolution without your consent.
You can get an Annulment or Legal Separation even if you haven't lived in California for six months or your county for three months before filing.
An annulment essentially means your marriage never existed. There are only a few grounds that qualify for an annulment: 1) incest, 2) bigamy, 3) under the age of 18, 4) prior existing marriage, 5) mental incapacity, 6) fraud, 7) force, and 8) physical incapacity, with certain exceptions.
Sometimes legal separation is preferred to dissolution. You can still obtain a court order regarding custody, visitation, support, and assets/debts, similar to what occurs in a dissolution. Spousal support is the technical word for alimony in California. The court may order that one spouse pay the other support for a certain period of time. The general rule of thumb is that if the marriage was 10 years or more in duration, the receiving spouse may receive support for an indefinite period of time, until death or remarriage. If the marriage was less than 10 years, the receiving spouse may receive support for half the length of the marriage, or until death or remarriage. This isn't always necessarily the case though.
To determine whether support will be awarded and how much the award will be, the judge will consider factors such as the standard of living during the marriage, the length of the marriage, the age, health, incomes, and earning capacities of both spouses.
The receiving spouse will pay income taxes on the support received and the paying spouse is entitled to a tax deduction for the support paid.
Any support order or non-support order can be modified down the road if circumstances change, provided that the court reserves jurisdiction over the issue. The receiving spouse can also obtain a wage assignment (wage garnishment) directly from the paying spouse's employer. Both parents are both responsible for supporting the children until they reach the age of 18 or 19 if they're still in high school. The amount of support is based on established guidelines. The court typically uses a computer program to determine the amount of support, based on certain factors such as each parent's income, expenses, and the amount of time parent has with the children.
The receiving parent does not report it as income for tax purposes, and the paying parent is not entitled to a tax deduction. The receiving spouse can obtain a wage assignment (wage garnishment) directly from the paying spouse's employer.
Additionally, both parents are typically equally responsible for uninsured medical, dental, and child care expenses. The easiest and most effective and way to resolve custody/visitation issues is for both parents to reach an agreement on a parenting plan. The judge will usually accept such a plan and will make it a court order. If you're having difficulty reaching an agreement, it's a good idea to utilize the court mediation process, whereby a neutral mediator will assist the parents in creating such a plan. Preferably, the parents will reach an agreement. If they cannot, the mediator will determine what's in the best interest of the child and will make a recommendation to the judge. The recommendation isn't necessarily binding, but the judge will usually defer to it and will ultimately make a decision regarding custody and visitation for you.
The judge may give sole physical and/or legal custody to one parent, or joint physical and/or legal custody to both parents. In some cases the judge may even give custody to someone else if it's in the best interest of the child. The judge will consider factors such as the child's health, safety and welfare, and any history of abuse.
Sole physical custody means the children live with one parent and have visitation with the other parent. Joint physical custody means the children live with both parents on a regular basis. However, it doesn't necessarily have to be an equal amount of time.
Sole legal custody means one parent has the right to make decisions regarding the health, education, and welfare of the children. Joint legal custody means both parents have the right to make such decisions jointly.
The judge will consider the child's wishes if the child is of sufficient age and capacity, but the judge is not required to follow the child's wishes.
The judge may order supervised visitation with one parent if necessary to protect the child. The judge may also give stepparents and grandparents visitation in certain circumstances. The mediator may also meet with the child during the mediation process as well. You may request a paternity test to determine who the father of the child is. Paternity determination is required in order to receive an order for child support. You may request a modification of a existing custody, visitation, or support order when there is a change of circumstances that would warrant such a modification.
California is a community property state, which means that assets/debts acquired during the marriage are community property, with certain exceptions, such as student loans, which are separate property. This means each spouse owns half the asset or is responsible for half the debt, regardless of whose name it's in, unless you agree to an unequal division.
Assets and debts acquired before the marriage, after the date of separation, or by gift or inheritance are separate property, with certain exceptions. Separate property is not divided in a dissolution. It remains the property of the spouse who acquired it.
It
can be complicated to identify separate property when it has been mixed
with community property. However, using complex tracing
requirements you could be entitled to receive your separate property
back even if it has been mixed. You should consult an attorney for
advice in this regard. It's best if you and your spouse can agree on the division of assets and debts, but if you cannot, the judge will make the decision for you. It's important to realize that even if your spouse agrees to pay a community property debt but then fails to pay, you may still be liable to the creditor. Division of assets and debts can be complicated. You should obtain advice from a lawyer before entering into any agreement. Once your case is filed there are several events that may or may not occur, as follows:
1) Default: If your spouse fails to file a Response in the case, you may request a default and the court will proceed without them to issue a judgment.
2) Temporary Orders: Either party can request a hearing to obtain temporary orders for child custody, visitation, support or restraining order disputes. These hearings are called Order to Show Cause hearings. The temporary orders may or may not become permanent.
3) Agreement: The parties and their attorney (if any) will attempt to permanently resolve the issues and reach an agreement. If you reach an agreement, you probably won't have to appear in court and the judge will issue an order based on your agreement.
4) Trial: If the parties cannot reach an agreement, you and your spouse will go through a trial. The process of obtaining a dissolution of marriage, determining the division of assets/debts, and determining support and custody issues can be very complex. An attorney can help ensure your rights are protected, as well as properly guide you through the process itself. Your spouse may need an attorney also if the case is complicated.
One alternative to hiring a lawyer to assist you with all stages of your case, is to hire one for only particular stages of your case. This will result in limited fees.
Another option, if you and your spouse can agree on the terms of the dissolution, is to hire only one lawyer who will prepare all the documents for both parties. The lawyer can legally only represent one party, but they will draft the documents with any terms you request, so there is no need for the other party to have an attorney if you can agree on the terms. You will likely avoid having to appear in court if you can agree. This will also be less expensive than both parties retaining an attorney.
You may also act as your own attorney (i.e., acting In Pro Per) and handle the entire case yourself. Be aware that even if your case is simple you could accidentally make serious mistakes. The law and the court has strict requirements and ignorance could cause expensive problems and/or delays in your case.
If you simply cannot afford an attorney you might want to consider hiring an attorney to simply coach you in handling your case yourself. Our firm even offers inexpensive do-it-yourself telephone assistance.
One thing to keep in mind is that sometimes the court will order your spouse to pay your attorney fees if they have more resources than you.
The final alternative is independent mediation, whereby you and your spouse can negotiate a resolution with a neutral third-party outside of court. This will result in a legally binding Judgment of Dissolution. It's still a good idea to hire an attorney to advise you of your rights during this process though.
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