While no one expects to get divorced, it happens. In fact, thousands of couples decide to get divorced every year in California. While every divorce is different, everyone seeking a divorce in the state must go through the same legal process to be granted a legally-sanctioned divorce by the government of California. This process is not quick and easy, in fact most divorces involve months of planning and negotiations. To get through this process, it is generally encouraged for you to employ the help of a skilled divorce attorney, preferably one that has substantial experience representing clients in your locality. Call 858-529-5150 to talk with an attorney in National City, CA who can help you with your divorce.
For the divorce process to be initiated, one of the spouses must file for a petition of divorce in their local superior court. Since this petition is complicated, people often talk to an attorney prior to filing the appropriate paperwork. In California, there are no legal requirements, beyond filling out the form correctly, for filing a petition of divorce. California is one of the no-fault states when it comes to divorces, meaning that the person filing the petition for divorce doesn’t need to provide an explicit reason for seeking the divorce. This person only is obligated to cite irreconcilable differences when submitting their petition.
If the divorcing parties both agree on a divorce and on the terms of a divorce, then the divorce is what is called a non-contested divorce. Even in uncontested divorces, it is common for both sides to hire legal representatives, to make sure that all the paperwork is completed correctly, and that the terms of a divorce meet the legal requirements laid out in California law. Also, a trained legal professional in a non-contested divorce setting may be able to identify if the individual whom your divorcing is misrepresenting any assets in an attempt to cheat you out of part of the settlement. If the divorcing parties don’t agree on getting divorced or on the minutiae of the settlement, then the divorce is what is called a contested divorce. Contested divorces can be settled in a number of ways, through mediation, arbitration, or in trial, although divorce cases going to trial is rare in California. To steer through any of these three processes, almost everyone hires a divorce attorney who holds experience handling such cases.
As mentioned above, every divorce is different; however, there are certain legal issues that normally must be addressed in a settlement of a divorce. A few of these common divorce topics are summarized in the writing below.
A relatively new divorce process, called collaborative divorce, has become a more popular method of divorce in California over the past few decades. Under collaborative law, couples who don’t initially agree on the terms of the separation can settle their differences and get divorced outside of mediation, arbitration, or a full trial. The collaborative divorce process begins by you and your spouse hiring divorce attorneys, as the presence of legal professionals is explicitly required for this particular process. Then, the two individuals and their legal professionals must sign a participation agreement, which lays out the rules for the negotiation procedure. A participation agreement will require that both groups be completely honest throughout the proceedings, that neither party engage in or threaten to engage in litigation during the process, and that both groups agree to keep the details of the negotiations completely confidential, meaning these negotiations cannot be referred to in a potential future trial or arbitration setting.
After these negotiations are completed in good faith, the lawyers from both sides come together and attempt to draft a divorce settlement that appeals to both sides. This settlement is then presented to both of the divorcing persons, and is subject to their approval. Generally, this settlement will be agreed upon by both of the divorcing persons, as the details of the settlement are usually made clear through the negotiation process, but both sides reserve the right to reject the agreement. Collaborative divorce is a desirable option for many, for a few central reasons. It is usually much less costly than a typical divorce, and it can be scheduled at times that don’t conflict with either person’s schedule. Also, unlike in a trial setting, the final decision is not made by a judge, but rather by the divorcing persons themselves.
Annulment in California
Under special circumstances, your lawyer may advise that you do not pursue a traditional divorce, but instead enter the process for obtaining an annulment of your marriage. Not everyone can obtain an annulment in California, only people that meet certain legal requirements are permitted by law to receive an annulment. If the marriage was between two people who are close blood relatives, or if 1 of the partners was already legally married to another person, then an annulment can be granted. Annulments can also be given if one or both parties were forced against their will to get married, if the marriage was completed under circumstances that were fraudulent, or if either or both of the parties was not of sound mind at the time of the marriage, among a few other reasons.
Unlike divorces, which dissolve a marriage but do not erase the legal record of the union, an annulment completely invalidates a marriage and expunges it from record, meaning it’s as if the marriage never even took place from a legal perspective. This means that after a marriage is annulled, alimony cannot be required, since alimony is only paid between couples who have a legal record of being married. Also, community property laws can’t be applied since the marriage was not valid in the first place. Lastly, unlike with divorces, annulments are not associated with a 6 month waiting period, instead the annulment takes effect immediately after it is processed by the courts.
Another alternate to divorce that is available to couples hoping to split legally from one another is the process of legal separation. A legal separation allows a couple to legally separate without dissolving the marriage through divorce. Through a legal separation, a couple technically remains married, but goes through many of the legal proceedings typically associated with divorce. A legal separation allows the couple to enter negotiations regarding child custody, the division of matrimonial property, spousal support payments, and other issues that must be dealt with when a married couple opts to separate. A legal separation does not stop a couple from ever getting divorced, in fact for many couples, legal separation is a stepping stone to actual divorce. However, since legally separated persons are still technically engaged in marriage, they are not legally permitted to remarry while legally separated.
There are a couple of main motives that lead people to pursue legal separations instead of traditional divorces. If you and your spouse are looking to separate, and think some of the following reasons may apply to you, then it may be a good idea to contact a National City attorney, who can help you decide if legal separation is a desirable option. For some, a divorce constitutes a violation of their religious beliefs, so legal separation becomes a preferable option. Some married people know they need to separate from one another, but don’t feel ready for a full-on divorce, so they get legally separated instead. Another common reason for legal separation is a desire to hold onto certain benefits that only apply to married couples. People do not want to lose key benefits, for example certain health insurance benefits, that are only granted to people who are married, so they choose to pursue a legal separation to maintain these benefits.
Division of Matrimonial Property
The one issue that must be handled in nearly all divorces and legal separations is the issue of how property will be split after the couple obtains their divorce or legal separation. Property acquired before or after the separation of the couple is considered separate property, and its ownership is fully retained by the first owner. Note, separate property rules apply starting after the couple separates, not after the divorce itself. This means that the date of separation is highly important when determining property division, and is often a contentious issue in divorces.
Since California acts as a community property law state, property obtained after the start of the marriage and before the date of separation must be divided evenly between the couple, 50/50. The couple is not required to divide each piece of property evenly, rather the law requires that the value of the community property received by each person after the divorce is even in monetary value.
A prenuptial contract is a contract agreed upon by two people who are about to get married, that lays out the specifics of a potential future divorce settlement should the couple decide to get divorced in the future. While a prenuptial contract is not required before getting married in California, it can help the divorce process move more smoothly by settling certain issues before any divorce negotiations take place. A prenuptial contract is allowed to contain certain provisions, and not allowed to contain others. A prenuptial contract is permitted to contain agreements regarding alimony payments, inheritance rights, and the division of matrimonial property. It cannot contain provisions that deal with the issue of child support, child custody, or any provision that violates California marriage law, such as a provision penalizing a spouse for committing an act of adultery.
If you are getting divorced and agreed to a prenuptial contract prior to getting married, it may be advisable to have a National City attorney examine the prenuptial agreement, to make sure it is fully valid and applicable. In addition to the provisions outlined in the paragraph above, there are certain other factors that can cause a prenuptial agreement to be invalidated. A prenuptial contract must be agreed upon with the total consent of both parties, it must be signed under the observation of a notary public, and each party must have been permitted 7 days to have a legal representative review the document before signing.
A postnuptial contract is similar to a prenuptial contract, but instead of being obtained before the marriage takes place, a postnuptial contract is acquired while the marriage is still taking place. A postnuptial agreement also lays out how certain issues will be handled in the case of a divorce, and is often obtained by couples who regret the fact they did not acquire a prenuptial contract before the marriage. A postnuptial agreement must meet the same requirements as a prenuptial agreement, it cannot contain provisions regarding child custody or child support, and must be signed with the consent of both parties, with the approval of a notary public, etc.
A postnuptial contract, unlike a prenuptial contract, is usually acquired due to certain events taking place during the marriage. If one spouse undergoes a change in personality and begins engaging in uncontrolled behavior, the other spouse may pursue a postnuptial agreement to shield themselves in case of a divorce. Also, if one or both spouses undergo a large increase in disposable income, then a postnuptial contract may be pursued due to this change in circumstances. Another significant difference between postnuptial and prenuptial contracts is that a postnuptial contract must have its validity proven in court prior to approval, while a prenuptial agreement is considered valid initially and can only be invalidated through a court proceeding.
After reading this guide, you should have a better understanding of how divorce works in California. However, you still probably have certain additional questions that you want answered, perhaps about your individual divorce case. If this is the case, dial the San Diego Divorce Attorney at 858-529-5150 during our hours of operation to have a helpful chat with a top-notch divorce lawyer in National City. This legal professional can provide answers to any further inquiries you might have, or serve as your legal representation if you so desire.