Are you thinking about filing for divorce, or beginning the process of getting a divorce, but are feeling uneasy or intimidated by the complicated legal proceedings involved in a divorce in California? Don’t worry, you certainly aren’t alone in feeling this way. Most people without law degrees who want to pursue a divorce are confused by the complex legal process, and worry they might make a mistake when pursuing a divorce. While people often feel isolated due to their impending divorce, there is no reason to go through the divorce process alone. Most people in this situation hire a divorce attorney to assist them with this trying time in their lives, as a divorce lawyer can make sure that you are treated fairly and not taken advantage through the legal settlement of the divorce. Call 858-529-5150 right now to speak on the phone with a qualified lawyer in Encinitas who has experience dealing with divorces in the local area.
Note, to get a divorce in California, you must meet certain residency requirements, simply living in California at the time of your divorce is not sufficient. In order to file for divorce in California, at least one of the divorcing parties must have been living in California for at least 180 days or 6 months prior to the date of the divorce filing. This term of residency must be somehow legally verifiable, such as through a signed and dated lease agreement.
Also, it is important to know that there is no such thing as common law marriage in California. Unlike in some other states, in California it does mean you are married under common law marriage if you and your spouse have been living together for an extended period of time, have children together, or even if one spouse took the other’s name or the two surnames were hyphenated. This means that without an official marriage license, you can’t obtain a divorce in California, as only people who were legally married can pursue a divorce.
California is a no-fault marriage state, meaning that opposed to other states where fault must be proven by the person filing in order for a divorce to be given, there is no such requirement for proof of wrongdoing or marital misconduct in California. In order for a divorce to be given, the only requirement is that the person filing for divorce must make a claim of irreconcilable differences, and insist that there is no chance that the issues preventing the marriage from functioning can be resolved. This means that there is usually nothing one spouse can do to prevent the other spouse from pursuing and eventually completing a divorce.
However, just because fault is not required for a divorce to be successfully filed in California, does not mean fault is not considered during the settlement of the divorce. If the two sides are unable to settle their divorce out of court with the help of their attorneys, then the judge may take wrongdoing into account when deciding on issues related to child custody and spousal support. If one spouse was convicted of domestic violence, child abuse, or other violent crimes, then the judge may decide to deny them joint custody of their child, or even completely prevent visitation of any kind. If a spouse can be proven to be earning less income than they reasonably could with their skillset, the judge may take this into account when determining alimony.
While each marriage and divorce is unique, a few central issues often come to the forefront during a divorce. In order to make sure you receive the best possible representation in each of these areas, you will want an expert Encinitas divorce attorney to represent you. Here is a brief explanation of a few of the key divorce topics:
Division of Property, Debts, Assets
The courts in California will accept a property division agreed to by the two sides and their lawyers as long as the division is within the bounds of the law and appears generally fair. If the two divorcing people and their lawyers cannot come to an agreement regarding the division of their property, debts, and assets, then a judge in the superior court where the divorce was filed is forced to make a property division decision for them. California is state where community property rules are enforced, meaning the judge will divide any and all property/debts/assets obtained during the life of the marriage completely evenly and equally. Also, if the judge finds that one of the parties involved in the divorce took deliberate action to misappropriate certain funds or debts in order to bring financial harm to the other party, the judge may take compensatory action.
When making a decision on how to divide the property of a divorcing couple, the judge is permitted to give different types of property to each party. In other words, the judge is not required to perform “in kind” split of the property, meaning the 50/50 division of each piece of property. Instead, the judge must simply make sure that the net value of the property/assets/debt given to each party is equivalent.
Separate property is not subject to division by a judge in a divorce settlement. Generally, separate property is understood as property/assets/debts acquired by one of the spouses prior to or after the end of the marriage, but there are a few exemptions worth noting. Money received as a result of an award for a personal injury, the dividends paid from a pension which the individual became entitled legally to receive prior to the start of the marriage, or any property purchased with separate funds (money acquired before the marriage) also counts as separate property under California law.
Prenuptial and Postnuptial Agreements
A prenuptial agreement is a document between two people planning on getting married regarding the settlement of a potential divorce, which goes into effect when the couple officially gets married and receives their marriage license. However, prenuptial agreements are often later found to be invalid and therefore unenforceable, especially when the prenuptial agreement was drafted and finalized without oversight from a qualified attorney. If you are getting a divorce, and you and your soon to be ex-spouse signed a prenuptial agreement, you should speak with an Encinitas attorney and have him/her look over the document, to make sure the prenuptial is fully legal and enforceable.
There are a few core factors that can invalidate a prenuptial agreement. In order for a prenuptial agreement to not be considered invalid, the agreement must have been signed with the full consent of both parties. If one party only signed due to undue influence, then the document is invalidated. Also, there must have been a minimum 7-day delay between the receipt of the agreement and the signing of the document, for the purpose of being looked over by an attorney, otherwise the agreement is invalidated.
A postnuptial agreement is highly similar to a prenuptial agreement, except it is signed after the beginning of the marriage, rather than before. It also lays out the groundwork for how a settlement of a divorce would be handled if the two people do indeed decide to divorce.
Common topics found in a postnuptial agreement include the division of certain shared properties, the amount of alimony that will be provided for one spouse by the other, the question of which debts will be paid by which spouse, and who will retain control over the family pets. As with a prenuptial agreement, a postnuptial agreement can be invalidated if certain violations are found in the body of the agreement. Postnuptial agreements cannot relieve a spouse from the legal obligation of child support, enforce a penalty for infidelity or any other reason due to California’s no-fault policy, and any other provision that violates California law.
A domestic partnership is an alternative to marriage for couples in California. Contrary to popular opinion, domestic partnership is not just an option for same-sex couples, it also an option for opposite-sex couples if at least one of the people in the relationship is 62 years of age or older. It is generally used by couples who want to engage in a legally-binding relationship, and receive many of the benefits associated with a legally verified relationship, without obtaining a marriage license.
The normal process for terminating a domestic partnership is highly similar to the process for completing a divorce, and is referred to as a dissolution. If two the partners involved in the domestic partnership are able to reach an agreement on their own regarding the division of property, child custody, child support, and the other common issues a couple must deal with in a dissolution, then there is no need for the court to interfere, and a judge will most likely approve the agreement. However, if the divorcing parties cannot come to a common agreement, then a family court judge is required to make a final verdict regarding the terms of the dissolution, similar to a divorce.
Under certain circumstances, a domestic partnership can be terminated by filing a notice to terminate domestic partnership with the Secretary of State of California. This process is generally simpler and less expensive than a normal dissolution, but is only available to people who meet certain requirements. In order to qualify for this special kind of domestic partnership termination, both parties must desire the termination, the domestic partnership must have lasted under five years, there are no children involved in the relationship, no joint land/buildings are owned by the couple, any joint loans are less than $6,000, any joint property is worth less than $40,000, both agree to no spousal support, and both agree on how to divide any property/obligations/assets.
In order to bring an end to a marriage, some people in California decide to pursue an marriage annulment, also called a judgement of nullity, instead of a full-fledged divorce. If you think you might be interested in an annulment, you should speak with a nearby Encinitas attorney to see if an annulment is a viable option for you, as annulments are not available to everyone, and/or not in every person’s best interest.
There are few main reasons why someone would want to pursue an annulment rather than a typical divorce. Unlike with a divorce, which requires a 6-month delay before being processed, an annulment can be processed immediately after legal approval. Also, with an annulment, any record of the marriage is permanently erased, and it is as if the marriage never happened in the view of the legal system, whereas with a divorce there still exists a permanent record of the marriage.
While many people believe that annulments are available to any couple that was married recently, this is actually not the case in California. Only marriages that can be legally invalidated by certain circumstances can be annulled in California. There are two sorts of marriages that can be annulled: marriages that were void from the beginning, and marriages that are voidable due to certain factors. Marriages that involve bigamy, when one spouse was already in a marriage with another person, are void from the start of the marriage. Also, if one of the people getting married was below 18 when getting marred, the marriage is void. In these two scenarios, barring certain rare circumstances, an annulment will be automatically granted. If one of the spouse’s agreement to get married was obtained with fraudulent measures, or if one of the spouses can be proven not to have been of sound mental capacity at the time of the marriage, then the marriage is voidable, meaning the judge must use discretion to make a decision on the annulment.
Perhaps the most difficult part of a divorce proceeding is the issue of child custody and visitation. While parents are encouraged to reach an agreement outside of a court of law, in what is referred to as uncontested custody and visitation, mothers and fathers often each want to spend the majority of the time with the child. As a result of this fact many custody and visitation issues are settled in a courtroom setting, through what is named contested custody and visitation, with a judge in family court making the final call.
When making his/her decision, the judge is focused on what will be best for the child or children in question. The judge will take into account the caretaking abilities of each parent, the work schedules of the parents, the emotional ties between each parent and the child/children, and other issues that factor into the wellbeing of the child/children. Often, a judge will decide to maintain the “status quo,” or current custody and visitation arrangement, in order to give the child/children a sense of continuity, although this is not guaranteed by any means. California law favors co-parenting arrangements, in order to give a child the opportunity to spend time with both of their parents, although a court will grant sole custody to one parent and bar the other parent from visitation if the other parent is deemed dangerous or otherwise detrimental to the child.
There are two types of custody: joint and sole. Joint is when custody is shared between two parents, and sole is when custody belongs to one parent. Also, there is physical custody (which parent the child lives with), and legal custody (control over life decisions for the child). Visitation refers to the time when the parent who spends less time with their child in a sole custody arrangement gets to see their child.
Child support is defined as a court-ordered monthly payment by one divorced parent to the divorced parent who is primarily taking care of the child/children, in order to cover the living expenses associated with supporting the child/children. The amount of money owed in child support is determined by a complex formula and usually computed by an electronic program. This program will take into account a few main variables, with the main variable being the level of disposable income available to the parent paying child support. The level of disposable income is determined by obtaining the parent’s gross income, and then subtracting certain deductions, including federal and state taxes, union dues, payments for health insurance, and a few others.
In certain cases, the parent responsible for paying child support may not have a form of income, say if the parent is unemployed for a long period of time. This, however, does not excuse this parent from paying child support in most situations. Most of the time, the court will “impute” the estimated amount of money the parent could be making based on his/her skillset into the electronic program, if he/she made a reasonable effort to find a job.
Find an Encinitas Lawyer with Divorce Expertise Near Me
Do you think you want to speak with an attorney after reading through this guide, to answer any additional questions you might have? Thinking about hiring a divorce lawyer? Call 858-529-5150 to speak with an Encinitas Attorney with San Diego Divorce Attorney, who has experience dealing with a range of different kinds of divorces and common divorce issues. Whether your divorce case is settled inside or outside of a trial setting, it is a good idea to employ an attorney who will get you the best possible settlement and make certain you are not exploited in any manner.