Divorce proceedings can be complex, stressful, and overwhelming. It is generally best to undergo the legal process with the help of a skilled attorney so that they may advise you on how best to proceed. This is particularly true in the state of California, where the divorce and family law is complicated. If you need an attorney in Solana Beach or the greater San Diego area, then the law firm of San Diego Divorce Attorney can help you today.
Divorce Law in California
Divorce law falls under the broader category known as family law in the California civil codes. The specific divorce laws deal with marriages, divorces, domestic partnerships, and familial relations. Consequently, divorce and/or family law is sometimes called matrimonial law or the law of family relations. It is crucial to note that marriage is a legal contract that specifies various responsibilities. It is, at its core, a financial agreement between two private parties. Therefore, the dissolution of said contract (a divorce) requires the skilled hand of a knowledgeable law firm.
These responsibilities are specifically determined by the statutes in California divorce law. For example, residents of Solana Beach, a city located in San Diego County, are subject to the laws of the state of California. These residents must go through the county clerk if they wish to obtain a marriage license and they must go through the same county clerk to get a divorce.
The process of getting a divorce begins with the act of filing for said divorce via a legal petition. It is in your best interest to retain legal representation the moment you decide to file for divorce. In legal terminology, the person who files for the divorce is known as the petitioner. This petition must be filed with the Superior Court of the county in which the couple resides. For example, residents of Solana Beach would file with San Diego Superior Court, specifically at a facility known as the North County Regional Center on 325 South Melrose Drive in the city of Vista, CA.
Divorce law in California designates all divorces as no-fault divorces. As a result, the petitioner need not prove to the court that their spouse specifically did something wrong or otherwise broke the law. The petitioner only has to give the reason as irreconcilable differences in order for the petition of the divorce to go through. Irreconcilable differences are by far the most common reason given for a divorce proceeding. At this point in time, the spouse on the receiving end of this divorce petition (also known as the respondent) must give their official response. Once they do this, the proceedings may continue. Furthermore, it is best for you to retain a divorce attorney the moment you have been served with a divorce petition. San Diego Divorce Attorney can handle both sides of the proceedings, representing both petitioners and respondents.
Contested Versus Uncontested Divorce
At this point in time, the respondent must decide how they wish to respond to the initial petition for the divorce. If both the respondent and the petitioner agree to the legitimacy and terms of the divorce, it is known as an uncontested divorce. This is by far the easiest kind of divorce and results in the least amount of bitterness on both sides. In an uncontested divorce, the two parties also agree to all the particulars of the proceedings, also known as ancillary matters, including such issues as the division of assets and property, custody of the children, and alimony and/or child support payments. However, even if the petitioner and respondent agree to all the specifics within the ancillary matters, it is still advisable to retain the services of a divorce attorney. This will ensure that complex financial matters will be handled with an expert’s knowledge and eye for detail.
In some cases, the respondent may claim that the actual divorce is not legal, thereby making it not legitimate. They may also not agree to the specific terms in the ancillary matters. This is also known as a contested divorce. There are various methods to deal with a contested divorce, including the use of third-party mediation. The mediators are not involved in official decisions in the divorce settlement, but they do help the parties come to a civil agreement on how best to settle the various ancillary matters. Though this process does not go in front of a judge or occur in family court, it is still advisable to have a divorce attorney represent you throughout these proceedings. Think of it as having someone on your team who has your, and only your, best interests at heart. A mediation process is totally voluntary and is not legally binding. Either party may opt out of the process at any time, for any reason.
The couple in question may also enter into a process known as arbitration. As opposed to mediation, this process is legally binding. It occurs when a third-party expert in family and divorce law (usually a retired family court judge) meets with the couple and their attorneys and reviews all the relevant documents to the case. This means that the arbitrating judge will be closely eyeing all the specifics of the case, thereby necessitating legal representation. Whatever decision they make must be obeyed by both parties.
The final option is to take the case to trial. Divorce law falls under the jurisdiction of the family court. This is the civil court circuit that deals with California statutes on family law. Residents of Solana Beach would have to go through San Diego Superior Court. However, this option can be expensive, emotionally exhausting, and difficult for all parties. It is generally considered to be the last resort. In the state of California, less than 2% of divorce cases will go to a trial in family court.
Furthermore, there are various relevant issues that will come up as a result of the divorce proceedings. These are collectively known as ancillary matters. It is best to hire a Solana Beach attorney who knows how to best navigate these issues and can advise you for the best possible outcome.
Alimony and Spousal Support
Alimony (spousal support), is the amount of money that is paid by a spouse to their former spouse. It is considered to be a legitimate source of income and as such is actually taxable by both the state and the Internal Revenue Service (IRS). This is because during the course of the marriage, everything, including income, is shared by the couple. After a divorce has gone through, it is expected that one spouse (usually the primary breadwinner) will continue to support the other spouse for a certain period of time (usually half the length of the marriage). This is to allow the spouse receiving the alimony to find other means of generating an income.
Alimony payments are generally paid monthly, though they may also be done as a lump sum. In certain cases, the alimony payments may extend indefinitely. Furthermore, the spouse who has the higher income (also known as the supporting party) is expected to pay the other spouse (also known as the supported party). If both parties in a marriage have roughly equivalent incomes, then no alimony payments are usually required.
Determining the alimony payments is very complicated under California divorce law. There is no general formula for determining these payments, meaning that it is absolutely essential that you have a knowledgeable attorney who can effectively argue before the judge. The specifics of the alimony settlement will depend entirely on the specifics of the case. However, a general rule of thumb is that the supporting party will have to give over approximately 30% of their income. If the supported party has an income, then 20% of that sum is deducted from the supporting party’s payments. Ultimately, the supported party may not receive more than 40% of their income combined.
Child Custody Agreements
One of the more contentious issues in most divorces is the custody of the children. This particular area can result in serious battles in family court that can even traumatize the children. San Diego Divorce Attorney can help you avoid that possibility by advising you in how best to proceed.
Child custody has two fundamental forms: legal custody and physical custody. Legal custody refers to which parent has the primary decision-making power, as legally determined in the custody agreement, over the child’s day-to-day life and important decisions as they relate to the child’s life. This includes schooling, medical treatment, religious issues, participation in sports, and other issues. Physical custody refers to where the child in question will actually live; in other words, which parent has custody of the child in a physical sense. If the two parties in the divorce are fundamentally unable to reach a satisfactory agreement, then the judge will have to step in and make a decision. They do so with the interests of the child at heart and will determine what is best for the child.
Each of these forms of custody has two further classifications: sole custody and joint custody. Sole custody is also referred to as primary custody. In primary physical custody, the child will live the majority of the time with one of the parents and visit the other one. Joint physical custody means that the children live with both parents under some predetermined schedule. Joint legal custody means that both parents participate in the making of important decisions for the children. This type of joint custody requires a high degree of civility and cooperation between both parties. If seeking this type of joint custody, it is advisable that incendiary remarks or inflammatory interactions are avoided. Hiring a skilled legal team can help buffer you from the difficulties of a divorce proceeding and allow you to stay civil with your former partner.
Visitation agreements refer to situations where the parent who does not have sole or primary physical custody is allowed to spend time with their children. As always, it is preferable to determine these specifics independent of a judge or arbitrator. However, if that is simply impossible, then a legally binding agreement can be issued and both parents must adhere to it.
If both parties in a divorce are able to come to a mutually beneficial agreement, they can agree on what is known as reasonable visitation. This refers to when there is no set or locked-down schedule, allowing the visits to be worked out by both parties on an ongoing basis. This can only occur in divorce proceedings where each party is fairly civil and able to get along with one another.
However, in certain cases when one parent is deemed to be a risk to the mental and/or physical well-being of the child, then supervised visitation will have to be applied. This means that the judge or arbitrator will specify very strict terms of visitation, usually as the result of neglect and/or abuse by one parent. If the judge or arbitrator determines that the parent in question is too unstable or too great a risk, they can revoke supervised visitation entirely or not grant it at all. The law firm of San Diego Divorce Attorney is knowledgeable in every aspect of visitation agreements and we can argue for either side.
There are so many issues that may arise throughout the course of a divorce proceeding. At any moment, negotiations can break down and a stalemate can instantly arise. If there are children involved, they may be traumatized by the infighting and bitterness that can result. A divorce can be incredibly stressful and painful. It is best to seek out help to guide you through these dark and stressful times. If you are located in Solana Beach or the greater San Diego County area, give San Diego Divorce Attorney a call today at 858-529-5150. A member of our team will be standing by to speak with you and provide you with a free consultation regarding your case.