No one likes getting divorced. They can be emotionally exhausting, draining you of finances and spirit. However, if you retain the help of a qualified and experienced law firm to navigate the stormy waters of divorce cases, then you will have an invaluable ally and confidante to be on your side and help you get through this traumatic event. If you live in San Marcos or the wider San Diego County area, then San Diego Divorce Attorney is the right firm for the job!
California Divorce Law
Divorce cases occur under the jurisdictions of state civil codes. This means that residents of San Diego County, including San Marcos, are subject to the divorce laws of California. There are considerable differences between each state’s divorce laws, necessitating the need for knowledgeable legal representation.
It is useful to consider a marital union as a kind of legal agreement. This agreement carries with it legal and financial responsibilities. The exact nature of those responsibilities changes once a divorce is finalized. For example, if a spouse is the primary or sole source of income in a household, then they have a financial obligation to support the rest of the household (including their spouse). Once the marriage is over, however, they may be held responsible for continuing to support their spouse in the form of alimony payments.
The final goal of a divorce is to reach a divorce settlement. This is the legal agreement that is developed throughout the course of the divorce proceedings and then implemented and finalized by the presiding judge in family court. The terms in the divorce settlement that deal with alimony, child support, finances, and/or custody are known as ancillary matters. Furthermore, the exact nature of the settlement will depend largely on the specific provisions in California divorce law.
What is a No-Fault Divorce?
California is a no-fault divorce state, meaning that a spouse does not necessarily need a reason or justification to be granted a divorce. The most frequently cited reason is irreconcilable differences, which just means that the couple was unable to resolve their differences and consequently had to dissolve the marriage.
However, having a different reason could, in some cases, result in a more favorable divorce settlement for a client. Some prenuptial agreements have infidelity clauses, meaning that in the case of an affair, the guilty party is not entitled to assets in the divorce settlement. In these situations, the precise cause for the divorce has to be stated. If there are considerable finances at stake, then a client may have to prove or disprove that some behavior took place. Divorce lawyers have considerable experience dealing with these situations and can help you either conduct or avoid a private investigation into alleged behavior during the marriage.
In addition, the filing party can potentially secure a more favorable divorce settlement by placing fault on their spouse if these following factors apply to their case:
- Their spouse was incarcerated for a considerable length of time.
- Their spouse is unable or unwilling to have a sexual relationship
- Their spouse had an affair and committed adultery
- Their spouse is physically, emotionally, and/or sexually abusive
- Their spouse has abandoned the marriage and has been gone for a considerable length of time.
A lawyer well versed in divorce law can effectively counsel you on whether you wish to seek a no-fault divorce or if you can place fault on your spouse. Furthermore, we can also help you fight back against allegations of fault with any of these behaviors.
Legal Separation and Annulment
There is also the possibility of securing an agreement known as legal separation. This is an arrangement that is a precursor to a final divorce; the spouses are still legally married but occupy different places and effectively live as separate entities. A separation agreement (essentially the same thing as a divorce settlement) must be developed and implemented before it is approved by a judge. This agreement will specify the various ancillary matters.
Some couples are eligible to get an annulment instead of a divorce. The state of California can grant an annulment on the following grounds:
- Biological relatives. If the spouses are biological relatives then the marriage cannot be considered legal. The annulment may be requested at any time while the married spouse is alive.
- Polygamy and/or bigamy. If a person is already married then they cannot legally marry another person. An annulment may be requested at any time while the spouse is alive.
- Spouse is underage. California has no minimum legal age for marriage, but if a person is under 18 years old then they must have both parental consent and a court order in order to be legally married. The annulment must be requested within 4 years of the underage spouse’s 18th birthday.
- If one spouse got married for fraudulent reasons or caused the other spouse to get married for fraudulent reasons, then the marriage may be granted an annulment. The annulment must be requested no later than 4 years after discovering the fraudulent acts.
- Permanent or chronic physical incapacity. If one spouse is the victim of some medical condition that would prevent them from being able to procreate and/or successfully rear children, then an annulment may be requested within 4 years of the start of the marriage.
- Mental incapacity. If a spouse suffers from a chronic or temporary mental illness or condition that effectively made it impossible for said spouse to understand the terms and conditions of the marriage that they entered, then the legal literature refers to it as an unsound mind. It is the most frequently cited cause for annulment when the couple was heavily intoxicated at the time of the wedding.
- If a spouse is threatened or forced into marriage then that spouse may file for an annulment within 4 years of the beginning of the marriage.
Annulments are exponentially more difficult to get than a typical divorce. However, depending on the specifics of your case, and if you meet one of the above criteria, then a divorce lawyer could advise you to try and get an annulment.
The Requirements and Process for Filing a Divorce Petition
California has specific residency criteria in order to file for a divorce proceeding. The couple has to have been residents of the state for six months before the actual date of filing. Furthermore, they have to have been residents of the county in question for the three months prior. That means that residents of the city of San Marcos must have lived in the county of San Diego for at least three months.
In certain cases, however, a divorce lawyer may be able to provide the petitioner with other options (such as filing in their previous county of residence) if they wish to file for divorce as quickly as possible. This is particularly true in situations where the petitioner may be suffering from abuse from their spouse or is in fear for their safety. Your lawyer can also petition the court to protect the petitioner from an abusive spouse.
A resident of San Marcos is required to file their petition at the North Branch of San Diego Superior Court, located at 325 South Melrose Drive in the City of Vista, California. Once this petition has been filed, known in legal terminology as A Dissolution of Marriage, then the other party (respondent) must decide how they wish to respond. They can either agree to the divorce and terms therein, to have an uncontested divorce or they may not agree to the divorce and its terms to have a contested divorce. The former is always easier and simpler than the latter.
Paternity and Establishing Parentage
If a couple is married and the woman gives birth to a child, then California family law automatically assumes that the husband is the father. If a child is born out of wedlock, then the biological father must sign an acknowledgment form at the hospital or file for a judicial order to establish that he is the biological parent on the child’s birth certificate.
If a child is born out of wedlock and the couple subsequently marries, then the child becomes the legal responsibility of both parents. This is because section 3900 in the Family Code of California explicitly states that both parents have a financial obligation to rear the child.
In certain cases, however, it is necessary to establish or disestablish the parentage of a child. If the father wishes to retain legal and/or physical custody of the child, then they will likely have to submit to DNA testing during the course of a paternity hearing. Furthermore, if a former spouse believes that they are not legally obligated to pay child support because the child is not their biological progeny, then they will also have to submit to DNA testing to prove that they are not the father.
In these cases, the male in question will have to file an affidavit claiming that they are not the biological father. Within 90 days of this filing, they will have to file new evidence (a DNA test) to prove this claim. It is essential to have a divorce lawyer guide you through this process as paternity cases can become highly complex and contentious.
There are four basic kinds of custodial agreements. They are:
- Sole custody. This when one parent retains the custodial privileges.
- Joint custody. This refers to when both parents share custodial privileges.
- Physical custody. This refers to the parent that the child physically lives with. It is usually too complicated to have a child split their time evenly (joint physical custody) between the homes of two separate parents, so one parent generally has primary physical custody and the other has visitation rights.
- Legal custody. This refers to which parent makes decisions regarding a child’s development and/or wellbeing. In many cases, the parents can retain joint legal custody and both make decisions regarding school, health, and religion for the child.
A custody agreement is one of the primary ancillary matters that are addressed in a divorce settlement. It is also one of the most potentially contentious; having legal representation as a kind of buffer against your former spouse can help protect your children from the distress and trauma of potential infighting and disagreement.
If the couple is capable of having a civil divorce and can come to an agreement that is satisfactory for both, then they will likely implement a scenario that is known as reasonable visitation. This means that there is no predefined schedule and no judicial oversight to enforcing visitation rights. This requires the couple to have a high level of cooperation and the possibility of effectively communicating with one another. This is generally the ideal arrangement to protect children and maintain a stable environment for them.
If a reasonable visitation agreement is not tenable, then a set visitation schedule will be determined in the divorce settlement by a judge or arbitrator. Furthermore, if one parent is considered to be abusive or a potential risk to their children, then supervised visitation will be implemented. This means that the visiting parent will have to visit their children under the supervision of some agent of the court (usually a social worker). In embittered divorce cases this is the frequent result if one spouse accuses the other of abusive behavior.
Legal representation can aid you to fight back against accusations of abuse as well as ensure that an abusive spouse is properly supervised when interacting with your children.
Divorce proceedings are potential minefields of complications and bitterness. It is possible, however, to have a civil divorce that can spare you (and any children you may have) the heartache and pain of a contentious separation. If you live in San Marcos city or in San Diego County, contact our divorce attorney today at 858-529-5150. You will get a free consultation!