While all legal processes come with their own complexities and stresses, divorce is among the most demanding legal procedures one can go through. Not only is the divorce process itself complicated and difficult to understand, the emotional turmoil associated with divorce makes the process especially difficult to complete. In order to minimize the amount of stress you may feel during your divorce, it is generally encouraged that you employ the support of a trained divorce attorney. This person can complete all the complicated legal work that is extremely difficult for people without advanced law degrees to understand, and allow you to focus on moving forward with your life. To speak with a divorce lawyer in Oceanside, CA who has copious experience successfully handling divorces for clients in the area, call 858-529-5150.
While the most important action you can take to prepare for a divorce is to hire the right attorney, there are other steps you should take on your own in order to protect yourself throughout the divorce proceedings. For example, there are certain measures you should consider taking to protect your finances. You may want to stop making contributions to your retirement accounts, such as a 401k, as these accounts are often deemed communal assets, and the money inside them will therefore be split evenly between you and your ex-spouse. It also may be advisable to remove half of the funds in any joint bank accounts, to prevent your partner from completely draining all the funds, something that unfortunately happens regularly in unamicable divorces. If you have children with your spouse, there are other recommended measures. It is important that you spend substantial time with your children throughout the divorce proceeding, and that you do not move away from the children, unless you have made an arrangement to regularly spend time with your children. The reason for this is that a substantial amount of time away from your children can be used in a court as a reason why you should receive less custody. Lastly, it is smart to maintain a written record of anything you think might be applicable in a divorce negotiation or trial.
Another important action you can take to prepare for a divorce is to educate yourself on the basics of divorce law. While the most complicated legal aspects of a divorce can be left to your attorney to handle, it is a good idea to enter the divorce process with a basic-level understanding of how divorce works. The writing below will introduce you to some of the main issues seen in divorces, and give you an introduction to how divorce functions in California.
First, California operates through a no-fault rule for divorce, meaning that fault is not required to be proven for a person to successfully pursue a divorce in California. If one person desires a divorce, they simply have to submit a petition to their superior court, citing irreconcilable differences as the reason for the divorce. Irreconcilable differences in simpler terms just means that the person seeking the divorce feels there are certain differences between the couple that are stopping the marriage from working properly, and cannot be resolved. No-fault divorce means that once one person in the marriage files the petition for divorce, there is nothing the other spouse can do to stop the divorce from taking place, even if the other spouse doesn’t at all want to get divorced.
In order to get divorced in California, specific residency requirements must be met. To file for divorce in California, the person submitting the petition must have been a resident of California for a minimum of 6 months or 180 days before submitting it to superior court. The petitioner must be able to prove their residency with documentation, such as utility bill or paystub.
There are two primary types of divorce. Uncontested divorce is when the people getting a divorce and their lawyers agree on the divorce and on its terms, and submit an agreement to be reviewed by a judge without entering an official legal proceeding. A contested divorce is when the people getting a divorce do not agree on the divorce and its terms, and must settle their differences with a mediator, through an arbitration hearing, or in trial.
In any divorce, it must be decided how property will be distributed to each couple after the conclusion of the divorce. In a contested divorce where an agreement cannot be reached on how to distribute the property, a final decision will have to be made by an arbitrator or a judge. If the divorce is uncontested, then the people getting a divorce and their lawyers can draw up an arrangement for how property will be distributed, outside of a courtroom. However, this arrangement, as well as the rest of the divorce settlement, must be approved by a judge before being made official. To make sure your property arrangement is legally valid, don’t hesitate to get in touch with an Oceanside attorney.
The main reason why property arrangements are rejected by judges is that they do not meet the requirements codified in California’s communal property statutes. In California, the value of all property obtained during the marriage must be divided evenly between the two spouses, regardless of which spouse actually acquired the property. Note, there are specific exemptions to this rule. Assets received as part of a settlement for an injury, money or property received as inheritance through a will, or any property received as a gift does not have to be split evenly in the case of a divorce. Any property that is gotten before the marriage or after the date of separation is deemed separate property, and belongs exclusively to that one person who obtained it originally.
Child Custody and Visitation
Child custody determines how much legal power each parent will have over their children after a divorce is completed. It is generally encouraged that parents reach an understanding regarding child custody outside of a courtroom, so that an arrangement can be made that works well for each parents and allows both parents to regularly see their children. However, it is common for each parent to want to spend the majority of time with their children and control important choices for the child, so child custody is often contested and must be settled by a judge or arbitrator. California law instructs the judge or arbitrator to make a decision based on what is in the child’s best interest, which is usually to maintain the status-quo as much as possible and allow the child to spend time with both parents.
There are 2 types of custody that must be determined. The first is legal custody, which deems which parent will maintain control over important life choices for the children. Legal custody can either belong entirely to a single parent, or be shared by the two parents. The other type of custody is physical custody, which determines which parent will house the child and get to be physically with the child for the majority of time. Physical custody can also belong solely to one parent or be shared between the two of them. Visitation is when one parent has sole physical custody, and the other parent is allowed to “visit” their child for a set amount of time.
Child support represents a monthly payment ordered by the courts from one separated parent to the father/mother who is actually raising the child and taking on the financial burden of doing so. Child support is based on the legal principle that both parents of a child are responsible for supporting a child financially, and that it is unfair for only one parent to be responsible for this financial burden. Child support payments are determined by a computer program, which takes into account a few key variables. These variables include the exact number of kids supported, the gross amount of monetary income available to each parent, and how much each parent is contributing financially to the child independent of child support. Similar to child custody, child support can be determined outside of an official legal setting subject to approval by the courts, or through meditation, an arbitration hearing, or courtroom trial.
Under normal circumstances, child support isn’t required after the child turns 18 years old. However, there are certain exceptions to this rule. If a child is enrolled in high school while still 18 years old, then child support must continue until the child either graduates from high school or turns 19 years old. Child support also ends if the child joins the military before turning 18, since it is assumed that the caretaking parent is no longer financially supporting child. Lastly, if the child becomes legally emancipated, then child support payments will no longer be required.
Paternity refers to the legal rights a father has over his child. Paternity is often a central issue in child support cases, as a man will claim he is not the father of a child and therefore is not obligated to pay child support payments. In these cases, the court will often require this man along with the child to complete a DNA test, to officially determine whether or not this man is the father of the child.
In other cases, a man will want to assert his rights as a father. Despite the beliefs of some, a father maintains equal rights over a child as a mother does, and the gender of the parents is not considered by the courts when making any ruling regarding a divorce. However, while the fact that a mother is the parent of a child is easily verifiable, it is sometimes more difficult to verify paternity, especially if the parents weren’t married at the time of the child’s birth. If a man has not signed a Declaration of Paternity, then it is likely that he has not been legally established as the father of the child. In these cases, since the father is not legally recognized, he maintains none of the rights of the father, and has no right to access child custody or child visitation. In order to establish his paternity, a man may either request a DNA test, or provide alternative documentation proving he is the father.
If you are a man and feel as if your paternity rights are being violated, or are seeking assistance in proving yourself as the father of a child, call 858-529-5150 to talk with an Oceanside attorney who can guide you through this ordeal.
Prenuptials and Postnuptials
Prenuptial agreements and postnuptial agreements are documents that determine how certain assets will be divided in the occurrence of a divorce, and other key divorce issues. To be considered valid, these documents cannot be signed as a result of coercion, and each party must have been given a full week to review the documents with their lawyers. These documents may include agreements regarding alimony and property arrangements, but cannot include agreements regarding child custody, visitation, or child support.
A prenuptial agreement is agreed to by a couple prior to the marriage, and is signed by both parties at that time. A postnuptial agreement, as the name indicates, is signed after the couple gets married, sometime during the course of the marriage. The format of these documents is nearly identical, with the main difference being the time when the document was signed, as well as the impetus for the agreement. A prenuptial is usually signed as a general precaution before a marriage, whereas a postnuptial is usually signed during a marriage for a specific reason.
Connect with an San Diego Divorce Attorney Near Me
Call San Diego Divorce Attorney at 858-529-5150 to get in contact with an Oceanside divorce attorney. As mentioned above, while reading through this guide is a good first step, the divorce process is significantly easier to complete with the help of an expert attorney. Don’t worry if you don’t feel ready to commit to hiring an attorney just yet, our legal team will supply you with a no-cost case consultation over the phone without the requirement of a monetary commitment.