Divorce is never a simple process, and rarely something that you are able to do without outside support. While this is true everywhere, this is especially true in California, where the laws surrounding divorce and family separation are complicated and not always easy to understand for people without legal experience. As a result of this fact, many people choose to consult and hire an attorney to help them through this difficult transition in their lives. To hire a local attorney who has direct experience dealing with divorce cases in Del Mar, call 858-529-5150 to speak with a lawyer about your divorce proceedings today.
The first step in any divorce in the state of California is the filing process, for which people often consult an attorney. The person who officially files for the divorce is referred to in legal terms as the “petitioner.” The petitioner begins the divorce procedure by filing a petition in Superior Court, usually the one in the county in which the couple resided, which requests that the court dissolve the marriage in question. Note here that in the state of California, all divorces are under a rule that is referred to as “no fault” divorce, meaning the person requesting a divorce doesn’t have to prove their spouse broke the law or did something wrong to cause the divorce. A spouse only needs to claim “irreconcilable differences” for a divorce to be granted in the state of California. After this petition is filed, the other party involved in the divorce, known as the “respondent,” must file a response to the petition of divorce. How the respondent decides to respond to the divorce petition will determine how the rest of the divorce proceeds.
If both spouses agree to the divorce, then this is referred to as an uncontested divorce, as neither side is arguing against the divorce. This is the simplest and least contentious of all the forms of divorce, as it allows a couple to separate without having to go through court proceedings that can often be long and emotionally taxing. In an uncontested divorce, both parties in the divorce agree on all the details of the divorce (property division, child custody, etc.), outside of a trial setting. However, even though uncontested divorces do not go to trial, people involved in this type of divorce still do consult an attorney most of the time, to ensure that the process is fair and that no errors are made in the divorce process. This is especially true in divorces that involve the division of debt or property, as this complicated financial process usually requires expert attention.
The other main type of divorce occurs when the two parties do not agree on the divorce and its terms, and is referred to as a contested divorce. This type of divorce usually takes place when the members of the couple cannot agree on who should receive what as a result of the divorce proceedings. There are a few different ways a contested divorce can be handled. One way a contested divorce can be resolved is through mediation and the employment of an experienced mediator. This mediator does not make any formal decisions regarding the divorce, but rather helps the two parties and their attorneys (attorneys are not required, but are recommended for mediation) talk through their issues and ideally come to a resolution regarding the terms of the divorce. This process is completely non-binding and voluntary in nature. Alternatively, a divorcing couple can enter into what is called arbitration, where an expert on family law, often a retired judge with expertise in family court, after reading through the relevant documents and meeting with the two parties, makes a binding decision regarding the details of a divorce. Lastly, a divorcing couple can elect to take their case to trial, where a licensed judge makes the final decision regarding the exact terms of the divorce. Despite the popular notion that many divorcing couples enter divorce court, the reality is that less than 2% of divorce cases in California result in a full trial. This is because the trial process is expensive, grueling, and only really used as an option of last resort.
Your divorce, whether it is contested or uncontested, will involve a few key legal issues, explained in the paragraphs below. To ensure you receive what is duly yours, it is best to hire a Del Mar attorney who has expertise dealing with these specific issues in your local area.
Alimony is commonly defined as the spousal support that is paid from one party to the other during and/or after the completion of the divorce. Alimony can either be paid in monthly installments, which is the more common option, or through a lump sum. Most of the time, alimony is only paid for a certain period of time, usually less than half the length of the marriage, in order to help give one former spouse time to acclimate themselves and establish other sources of income, but in certain cases alimony can be indefinite.
The process for determining the exact amount of alimony one former spouse owes the other, if any alimony at all is required, is complex. Alimony is generally required when one former spouse makes significantly more money than the other former spouse, if their incomes are roughly equal than no alimony is usually obligated. While there is no precise formula for determining alimony, generally the supporting party owes the supported party 30% percent of their income, minus 20% of the supported party’s income, so long as the supported party doesn’t receive over 40% of their combined income.
There are two main forms of custody involved in child custody: physical custody and legal custody. Physical custody refers to the parent/parents with whom the child/children will physically live with. Legal custody refers to the parent/parents who have legal control over the child/children and maintain the right to make important life decisions for them. In cases when custody cannot be agreed upon by the divorcing couple, a judge will determine custody according to what they perceive is in the “interest of the child/children.
Physical custody comes in two main forms: sole/primary and joint. In sole/primary custody, the child lives with one single parent most of the time, but can visit the other parent if visitation has been permitted. In joint custody, the two divorced parents share physical custody of the child, meaning the child spends part of his/her time physically staying with one parent, and some of the time physically staying with the other. In joint custody, time between the two parents is rarely split 50/50, as this is too logistically difficult. More often, a schedule is agreed upon between the two parents, such as one parent takes the child on weekdays and the other takes them on weekends.
Legal custody can also be sole/primary or joint. The important life decisions involved in legal custody involve the choice of school, participation in religious institutions, choice of doctor, participation in sports activities, and much more. Under legal custody, parents are not required to agree on every single decision, but both do maintain the right to make decisions for their children. Since legal custody law does not make it clear exactly what decisions must be shared, it is highly recommended divorced parents communicate and decide this amongst themselves.
Visitation is generally defined as the time the parent who has physical control over their child less than half of the time gets to spend with their child. If visitation cannot be amicably agreed upon by the two divorcing parents, then the judge/arbitrator will determine a visitation order depending on the best interest of the kid and financial/emotional situation of each parent.
There are a few main factors involved in visitation. Visitation can either be determined according to a schedule, or through what is referred to as reasonable visitation. Visitation according to a schedule involves a specific timeline for when the child will stay with one parent and when they will stay with the other. Reasonable visitation does not involve a set schedule and is more open-ended, for instance reasonable visitation could involve an agreement that the child will stay with one parent five days out of every month, without the dates for those five days being exactly determined. This type of agreement is usually used when one parent’s work schedule is variable and subject to change every week or month.
Sometimes, a judge/arbitrator will only allow for visitation if the visitation is supervised by the other parent, another family member, or a professional agency. This is officially referred to as supervised visitation. Supervised visitation is usually only ordered when it is required to ensure the safety and/or emotional health of the child. Sometimes, supervised visitation is also used when the child and one of the parents do not know each other well, and the presence of a third party is required in order to make the child feel comfortable.
If one of the parents is deemed a risk to the physical or mental health of the child, then no visitation will be granted to that parent.
Division of Property/Debts/Assets
Normally in divorces that take place in the state of California, couples are able to determine how to divide their property between themselves outside of a courtroom, but usually with the assistance of trained lawyers. However, if they cannot come to an agreement on how to divide their property, then a court or arbitrator must do it for them.
According to community property statutes laid out in California law, all property, assets, and debts acquired during the course of the marriage equally belong to both parties, and thus will be divided equally 50/50 by the court. Separate property, which means property acquired by one of the former spouses before/after the official beginning/end of the marriage, is not considered communal and will given in its entirety to the original owner. Therefore, the primary job of the judge or arbitrator when dealing with property in a divorce case is to accurately determine what property is considered communal, and what property can be considered separate. Also, if it cannot be agreed upon by the divorcing couple, the judge/arbitrator must evaluate the value of the property in question. For real estate, this can be done through an appraisal by a licensed professional. For financial property, such as retirement assets, the judge/arbitrator will often call upon the expertise of a financial professional.
Note that property that was purchased or otherwise acquired before the marriage can be transferred into community property if agreed upon by both parties, and a written record is created verifying that fact.
Under certain circumstances, your attorney may encourage you to pursue an annulment instead of a divorce. These special circumstances include if one partner was already married to another person, the marriage took place between two blood relatives, at least one of the spouses was underage at the time of the marriage, one of the spouses was not of sound mind, or if the marriage was committed fraudulently or by force.
If an annulment is granted by the judge in the relevant family court, then it will be as if the marriage had never occurred in the eyes of the law, as annulment erases the record of the faulty marriage. The normal processes that would take place with a divorce then usually takes place, but with some caveats. All communal property must be divided, although this cannot be done through the family court system, because the marriage technically never took place. This can still be done with the assistance of a mediator. Since the marriage was legally invalid, right to alimony does not exist after an annulment is granted. All of the child custody and child visitation rules outlined in the paragraphs above still apply, since child custody and child visitation laws do not require a marriage in order to be applied, only parenthood.
Note that there is no 6-month waiting period for annulments as there are with most divorces in the state of California. The annulment goes into effect as soon as it is granted by the judge.
A prenuptial agreement is a document signed before the marriage that determines what property is communal and what property is separate, how spousal support will be determined, and other important issues in the event of a divorce. While it may be uncomfortable to think about divorce before a marriage, a prenuptial agreement will help you and your attorney navigate through the divorce with greater ease.
Your attorney may want to examine whether or not the prenuptial agreement you signed is in fact valid according to the Uniform Premarital Agreement Act. Our divorce attorneys in Del Mar can help you examine your prenuptial agreement to ensure its validity. For a prenuptial agreement to be considered legally valid, it must have been signed with the full consent of both involved parties, must have been signed in the presence of a licensed notary public, and both parties must have examined each other’s financial records.
A prenuptial agreement can include and cannot include certain measures. It can include the terms of alimony, the adjustment or elimination of inheritance rights, and the alteration of property that would otherwise be communal property to separate property. It cannot include penalties for infidelity or other missteps because California is a no-fault divorce state, the abdication of one’s legal responsibility for child support, or any measures that would adjust the relationship duties involved in marriage.
If you find yourself regretting the fact that you did not secure a prenuptial agreement prior to your marriage, your attorney may encourage you into looking into acquiring a postnuptial agreement whilst you are still married. In almost every way, a postnuptial agreement is identical to a prenuptial agreement, except of course regarding the timing of the agreement.
People usually decide to get a postnuptial agreement for a few main reasons. If one spouse is engaging in reckless behavior, such as unbridled spending, then the other spouse might request a postnuptial agreement. If one spouse starts earning significantly more money than the other spouse, they might be encouraged to pursue a postnuptial to secure their assets.
One main difference between a prenuptial agreement and a postnuptial agreement is the burden of proof. A postnuptial agreement must be proven to be valid in a court of law, whereas a prenuptial agreement can only be invalidated if it is successfully legally challenged.
Find a Del Mar Divorce Attorney Near Me
After reading this article, do you still have lingering questions about the divorce process, or about one of the common legal issues encountered during a divorce? Don’t hesitate to call 858-529-5150 to speak with a local Del Mar Divorce Lawyer that is part of our team at San Diego Divorce Attorney. You will be provided with a free consultation and evaluation of your case, at no charge. Even if you don’t believe your case will end up in court, as mentioned in the article above, it is recommended that you hire an attorney in order to ensure you are not taken advantage of during your divorce proceedings.