In California, those looking to file for divorce or whose spouse has already (or is likely about to) file a divorce against them, will confront a complex legal landscape that is fraught with unexpected difficulties and dangers.
Not only the dissolution of a marriage, but also thorny financial issues involving the division of property, spousal support, child support, and more are at stake. If a couple about to get divorced have children under 18 years old, child custody and visitation present an even more high-stakes and highly emotional issue than even the financial aspect.
Every marriage is different, and when a marriage breaks apart, every divorce is different too. Unless you have the benefit of expert legal advice and representation, you could easily make serious mistakes during the divorce process which might lead to your rights under California divorce law and family law being ignored or unenforced.
At San Diego Divorce Attorney, we have intimate knowledge of every aspect of California's numerous divorce related statutes, down to the legal minutia. We are familiar with the common issues and problems that often occur during a divorce process, and we will fight to ensure the law is upheld and you are treated fairly throughout.
To learn more, feel free to contact San Diego Divorce Attorney today by calling 858-529-5150.
Who Can File For Divorce In California?
In order to file for divorce in the state of California, you must first of all be married. And while that might sound straightforward enough, there are two situations that are not considered marriage as such legally that some might, perhaps, think would be: common law "marriages" and domestic partnerships.
The latter, domestic partnerships work just like marriages legally, but you would file for a dissolution of the partnership (technically.) The former, however, is a more significant difference because, unlike some other states, California has not "common law marriages." That means that no matter how long a couple lived together, there is no marriage and can be no divorce, therefore, unless an actual marriage contract was entered into.
And even when a marriage ceremony with a duly issued marriage license took place, if the proceedings were illegal in any way (such as marriage by force/fraud, illegal underage marriage, or if one of the parties was not of a sound mind at the time), an annulment would make more sense than a divorce.
There are also residency requirements before you can file a divorce in California. You must have lived in the state for the last 6 months (180 days) and in the county in which you file for the last 3 months. Sometimes, however, you can file in the county you currently reside in if you've recently moved after separating from you spouse.
Finally - and this is a huge legal factor - California is a "no fault divorce state." The wording in the statute is that "irreconcilable differences that can't be resolved" exist that have broken down the marriage beyond repair. But since what constitutes an irreconcilable difference is rather subjective and because the very fact one party is filing for divorce demonstrates that he/she at least considers such differences to exist, in effect, no fault need be demonstrated in order to file.
That's not to say that demonstrating fault, such as that the other spouse committed adultery or child/spousal abuse or simply abandoned his/her family, is "irrelevant." It may be relevant to the way property is divided and to child custody issues; but it's simply not relevant to the ability of either spouse to file for a divorce.
How Long Does It Take To Get Divorced In California?
While one can file the paperwork with a local county California Superior Court anytime, and thus, begin the process to get a divorce; the fact is, it will normally take over 6 months before the process is complete.
That's because there is a six month waiting period before a divorce can be finalized in California. And that 6 months begins from that date that you serve legal notice to your spouse of the divorce you've filed against him/her.
With legal separations, there is not waiting period - they can take effect almost immediately. And you can still get spousal and child support while legally separated (you just can't get remarried because legal separation does not end a marriage). And domestic partnerships can also often be ended without a wait period.
Is there any way a divorce can be "expedited" to avoid the wait period? The answer is: yes, sometimes. In some situations, you can file for a "summary divorce" that has no waiting period. To qualify, however, the following must be true:
- You meet the 6-month state and 3-month county residency requirements.
- Both spouses agree to end the marriage due to "irreconcilable difference." The other spouse does not contest the divorce.
- You have no children under 18 in the family, nor is one spouse expecting.
- Neither spouse owns real estate or has substantial equity in real estate.
- Neither spouse has over $6,000 in debt (excluding auto loans).
- There is less than $38,000 in marital ("community") property and neither spouse has $38,000 or more of separate property.
- Both parties sign the Property Settlement Agreement to divide their community property.
- Both parties waive any right to spousal support, waive the right to appeal, and have read the Summary Dissolution booklet provided by the California court system.
When a marriage is divided, the community property that was jointly owned by both marriage partners is also divided. Any and all property or income that was acquired by either spouse after they were married is considered community property; while property each person owned before the marriage can be the separate property of a particular spouse. If separate property was mixed with community property so that it cannot be easily detached, however, it might also now be considered community.
And many couples spell out which property is community verses separate, how property would be divided in the event of a divorce, and other similar issues in pre-nuptual (or post-nuptual) agreements, which can modify and simplify the property division process.
But since community property is equally owned by both spouses, it is divided in half upon a dissolution of the marriage.
That doesn't mean the division will "cut and dry" or uncontested, however. The status of property as community or separate has to be established, the value has to be arrived at too, and property other than money has to either be split in a particular way or liquidated so that the proceeds can be divided.
And there can also be issues of whether someone is hiding income/property (all income and property must be disclosed during the divorce proceedings). Plus, property acquired after the date of separation is normally not considered community property: and there can be disagreement on when exactly that date was since it may differ from the date of filing divorce or even from the date of one spouse moving out of the family home.
Many people do manage to work out a plan for dividing their community property on their own, and the court will encourage this. But, when agreement cannot be reached, the court or a court-appointed arbiter will have to step in and decide on how to divide the property.
In California, it is possible that one spouse will have to pay alimony (spousal support) to the other spouse following a divorce. This is not automatic, but it is fairly common. The higher wage earner would have to pay spousal support to the lower wage earner.
The dollar amount of alimony will vary greatly based on many factors. The basic idea is to maintain the standard of living that existed during the marriage. But here are some of the specific factors that can help determine the amount of spousal support:
- The income level and ability to pay of the supporting spouse; and the income level and ability to support him/her self of the supported spouse.
- The marketable skills possessed by the supported spouse. But if one spouse's career prospects were hurt by long periods of unemployment in order to care for children, this is also taken into account.
- The degree to which the supported spouse assisted the supporting spouse financially are through child care, in obtaining his/her degree or job training.
The duration of spousal support will vary greatly too. Generally, however, it is half the number of years the marriage lasted (if it lasted less than 10 years) but may be longer or even permanent if the marriage lasted 10 years or more.
Yet, if the supported spouse suddenly has a big increase in income or gets remarried, spousal support could diminish or end.
And, in most cases, the goal of spousal support is to help the supported spouse transition to single life again rather than to simply support him/her indefinitely. But again, this can vary, for if the supported spouse has a physical or mental disability or is old enough to be unlikely to remarry or start up a new career, spousal support might well be for life.
When divorce occurs while a couple have minor (under 18 years old) children in their family, child support will likely be required from one (or even from both) of the parents. The purpose of child support is to provide for food, clothing, shelter, medical care, and up to a high school education for a child.
The basis of child support used by California courts is the rationale that parents have a legal responsibility to care for their children until those children become adults. Child support ends when a child turns 18, or if he/she has not yet graduated from high school, when the child turns 19.
Who pays child support and how much is based on two main considerations:
- The income level of each parent, and more especially, the net disposable income. The state has a complex formula they use in determining net disposable income for the purposes of child support payments.
- The amount of time each parent spends with the child. The more time a parent spends taking care of his/her child, the less time there is to work and produce income to support that child. Thus, "timeshare" issues matter in determining child support.
There are specific formulas used to calculate child support. However, the court has discretion to raise or lower amounts based on need. And parents also have the option to form their own child support agreement, subject to court review and approval.
Child Custody & Visitation
California allows that physical and/or legal custody of a child can be granted to either parent. The child's best interest is the standard used to determine custody, so it's not automatically the mother nor automatically the higher wage earner or automatically anything else. It is at the court's discretion.
Physical custody simply means where the child lives, but even if a child primarily lives with one parent; there may be times when he/she is to live with the other parent (perhaps on certain holidays or special occasions or even a 50-50 split).
Legal custody concerns who will make important decisions for the child, such as where to go to school or which doctor to see. And not that legal custody does not always coincide with physical custody.
Visitation rights are generally allowed to the non-custodial parent. But in extreme cases, such as if child abuse or drug abuse has occurred, they might be denied or have to supervised.
Child visitation schedules can be agreed upon by both parents or imposed by the court. And they can be modified later if a parent fails to use his/her visitation times, if the job schedule of a parent changes, or for other reasons.
Contact Us Today For Help
At San Diego Divorce Attorney, we understand how stressful and confusing it can be to encounter California's complex divorce laws for the first time.
We have a detailed knowledge of the full gamut of California laws concerned with marriage, divorce, legal separation, annulment, child custody and visitation, child support, alimony, and other areas of family law.
Our team of experienced divorce and family law lawyers will begin by listening to you in order to understand your situation, and then we will patiently explain to you your legal options and the likely consequences of each legal path you contemplate. We help you make truly informed decisions by equipping you with all the relevant information.
Contact us today by calling 858-529-5150, and we will give you a free initial consultation and give quick attention to your case.