Going through a divorce can be extremely stressful and distressing. Even in a best-case scenario, whereby both parties agree to all the terms and conditions while maintaining an amicable relationship, it can be a very trying experience. This is doubly true if you have children or complex finances. Therefore, it is critical that you seek out the professional help and support of a law firm with experience in California divorce law. San Diego Divorce Attorney will be there for you whether you are a resident of the city or the county of San Diego.
Why is it Necessary to Have a Divorce Lawyer?
There are a variety of reasons that retaining legal representation is so vital in a divorce case. They include:
- The divorce is not amicable. The marital union is a legally binding agreement with an assortment of legal obligations. If a couple is unable to communicate properly, it becomes impossible to determine the details of the divorce in question. The final agreement, itself a legally binding document, is officially called the divorce settlement and is the ultimate goal during divorce proceedings. Hiring a divorce attorney can help you reach this goal if you are not on speaking terms with your former spouse.
- The couple has children. This can substantially complicate the ins and outs of a divorce case. A divorce settlement not only specifies financial obligations, it also specifies the details of child support, physical custody, and/or visitation rights. These details can become further complicated if one or both parents are not fulfilling their parental duties. These aspects of a settlement can become highly contentious and it is always best to try and shield the children from this whenever possible. A divorce attorney can help mitigate these circumstances and work with the couple to reach a satisfactory settlement.
- Resolving financial matters. This part of a divorce settlement can become highly emotionally charged. Because California is known as a community property state, any assets, properties, and/or debts accumulated within the marriage will be divided 50/50. However, in many cases, it is more financially feasible to split the finances into other ratios. An experienced divorce attorney can not only help you with the actual process of financial division but also properly appraise the exact value of these various assets.
- The presence of a prenuptial or postnuptial agreement. These agreements are legally binding documents that specify the ownership of assets in case the marriage fails. A prenuptial agreement is developed and enacted prior to marriage (and protects pre-marital assets) and a postnuptial agreement is done so after the marriage begins. A postnuptial agreement is frequently implemented if one of the spouses starts a new business, for example, and wishes to protect the integrity of said business in the event of a divorce.
- Questions of paternity or parentage. These are some of the most potentially contentious aspects of a divorce proceeding. The process of establishing or disestablishing paternity governs whether the male will be held responsible for child support payments or be allowed custody and visitation rights. This is particularly complex and is best handled by attorneys who are well experienced in divorce cases.
Hiring a divorce lawyer is necessary whether you are the party filing for divorce (petitioner) or the party that is responding to the filing (respondent).
Because divorce falls under the jurisdiction of state legislatures, the residents of the city or county of San Diego are subject to the divorce laws of California. These laws are part of the wider California civil code and are also known as matrimonial law. Choosing an attorney with an excellent working knowledge of said laws is vital to potentially securing a positive divorce settlement.
The Fundamentals of Divorce Law
A marriage comprises a legal agreement between two consenting adults and its dissolution must be performed by a legal authority (usually a judge). When the divorce is complete, each party returns to the legal status of single adults and become free to marry another consenting adult if they so choose.
To start the process of a divorce, the petitioner has to file in their county’s Superior Court. For residents of San Diego, this needs to be done at the Central Branch of San Diego Superior Court, which is located on 1100 Union Street. A petition for divorce is formally known as a Dissolution of Marriage.
The couple also has the option of pursuing a legal separation. In this scenario the couple is still legally married, but that they are living physically apart. For some couples, this is a preliminary stage to a full-fledged divorce. A legal separation entails many of the same things that a divorce does and requires a formal separation agreement signed off by a judge in family court. In some cases, a legal separation is preferable as it may result in less stress on the couple and their children.
Certain couples, however, may be eligible to file for a Summary Dissolution of Marriage if they meet the following criteria:
- The marriage lasted fewer than five (5) years.
- The couple has no children together and the female is not pregnant at the time of the filing. This includes both biological and adopted children from either before or after the marriage actually began.
- Neither party owns any real estate.
There is also the possibility of an annulment. A divorce is the termination of a legal marriage, whereas an annulment states that the marriage was never legal in the first place. It essentially means that the couple was never married at all. There are strict criteria for seeking out a successful annulment that can be evaluated by a qualified divorce attorney. The vast majority of cases, however, are typical divorces.
The Differences between an Uncontested Divorce and a Contested Divorce
The various terms of a settlement are formally called ancillary matters. They include all the relevant financial matters, such as the act of dividing property, debts, and assets. It also includes the formal agreement for the particulars of child custody and visitation rights. Finally, both alimony (spousal support) and child support payments are crucial ancillary matters, both of which can be determined by the couple themselves or the judge.
If the various ancillary matters and terms of the divorce are agreed upon then it is known as an uncontested divorce. These cases are exponentially simpler and easier because the couple has essentially developed the settlement themselves. They require a couple who have no issues communicating and maintaining contact. Uncontested divorces still necessitate a divorce attorney to ensure that all the particulars of the divorce settlement are to your benefit.
In cases where the couple cannot come to a satisfactory agreement on the ancillary matters, or are unable to communicate at all, it is known as a contested divorce. These are usually more contentious and difficult for all parties involved. In the event of a contested divorce, the couple may pursue a few options:
- This is the process by which the couple uses a neutral third-party mediator to help the couple effectively communicate while reaching a divorce settlement. Mediation is voluntary and requires a certain level of interaction for the couple. Once a settlement is reached and the judge signs off on it, it becomes legally binding.
- This process is similar to mediation, though it is overseen by a retired judge and consists of an unofficial hearing. It is different than mediation in that the judge overseeing it will not have a nuanced understanding of the specifics like a mediator will.
- Family court trial. If neither mediation nor arbitration is successful, then the couple can opt for going to a family court trial. Approximately 98% of divorces in California reach a settlement without going to trial because they are potentially expensive, traumatic, and stressful.
It is necessary to have legal representation whether you have a contested or an uncontested divorce due to the complexities of the various ancillary matters. Hiring a divorce attorney who knows these various practice areas is absolutely crucial.
According to divorce law in California, specifically Family Code statute 4320, alimony is the process by which one party must pay the other. It is also referred to as spousal support. Since a marriage is a legal contract, each party has various financial obligations while in the marriage. These obligations extend beyond the end of the marriage depending on the specifics of the divorce settlement.
The spouse who has a higher income, or is the sole earner of an income, is responsible for supporting the other spouse for some designated amount of time after the divorce. This is usually half the amount of time that the marriage lasted, though in some cases the obligation may extend indefinitely. The spouse making the payments is known as the supporting party and the spouse receiving the payments is known as the supported party.
The amount of the alimony payments depends on the income that the household earned. The standard amount is 30% of the supporting party’s income. The alimony payments can be reduced by 20% of the supported party’s income, but the supported party cannot be paid anything higher than 40% of a combined income. If both spouses had incomes that were roughly equivalent, then the judge may require that no alimony be paid.
However, there are exceptions to these rules and the alimony payments will ultimately be determined by the presiding family court judge. San Diego Divorce Attorney can argue for either the supported party to receive more or the supporting party to pay less, depending on your needs as a client.
Child Support and Custody
A divorce settlement also determines the specifics of custody of the children. This includes which parent has legal custody and/or physical custody. The former refers to when one parent has the legally-appointed power to make decisions about the child’s everyday life, including schooling, religious affairs, and/or medical treatment. The latter refers to which parent the child actually lives with. If a parent has legal custody, they frequently have physical custody as well.
Furthermore, the parties in the divorce may have joint custody, whereby the child lives with both parents according to a court-enforced schedule. In these cases, both parents also have joint legal custody; this means they both make vital decisions about how to rear the child in question. If a parent has sole custody, that means they are the only one who makes such decisions.
Disagreements over custody have the potential to become very heated in divorce proceedings. If a couple cannot come to some agreement over these terms and conditions, then the judge will intercede and draft a custody agreement that must be followed. As a neutral third-party, they will do so with what they consider to be the child’s best interests at heart. Because custody disagreements are so complex, it is absolutely essential to retain legal representation.
According to statute 3900 of the state Family Code, both parents are legally obligated to give financial support to their child or children. The parent who retains physical custody is usually paid child support from the supporting party. Section 4053 specifies that the principal obligation of each parent is to provide said financial support. It also states that the in case of court intervention, the interests of the children take top priority over the interests of the parents.
Furthermore, if the custodial parent does not have any income, then the supporting party will be legally required to pay more. This is because children have considerable financial needs, including the cost of food, shelter, education, and health insurance. Child support and alimony are separate payments, and they will ultimately be determined by the presiding judge.
San Diego Divorce Attorney can help you resolve any contentious issues that come up during a divorce proceeding. Whether you decide to have an uncontested divorce or seek out mediation, arbitration, or a trial, our attorneys will stand by you to give you the counsel that is best for you and your children. If you live in the city or county of San Diego, you can call 858-529-5150 for your free consultation.