The reality of facing divorce can be one of the most traumatic experiences many can go through. People’s circumstances can be different, in terms of what may motivate them to end a marriage. Yet, as a general rule, before seeking a divorce, such step should be thoroughly contemplated. The decision to move forward with a divorce should typically not be made while fighting or when feeling any anger. Instead, the decision to pursue a divorce should be made with a cool head and sound judgment. In certain relationships where there is no danger to one’s physical safety, or other harmful circumstances where it makes sense to immediately severe your relationship with your partner, divorce should be the last resort after all other good faith efforts to save the marriage have been exhausted.
If after such efforts, a couple is still contemplating divorce, the below information may be useful, in terms of understanding the process, should it be decided that seeking a divorce is the appropriate step to take based on the present and expected future circumstances of their relationship.
Residency Requirements and Grounds for Divorce
You must be a resident of California for six months and a county resident for three months to file for a divorce, which is called a “dissolution” in the legal system.
Either spouse can get a divorce simply by stating in the divorce papers that “irreconcilable differences” have caused a breakdown in the marriage.
The legal divorce process begins when one of the spouses files a “Petition for Dissolution of Marriage” with the Superior Court in the county of which he or she has lived in for the last three months. The other spouse must then be “served” with the paperwork and given time to respond. If the parties are in agreement about property and debt division, as well as any child custody and support matters, the divorce can be finalized without a trial. If the parties can’t come to an agreement, the court will set a time for a future hearing or trial where a judge will decide any disputed issues.
After the Petition for Dissolution has been filed, either party can request temporary assistance from the court, for instance, temporary custody and child support, spousal support, exclusive use of the family residence, or determine who pays community debts on a temporary basis while the divorce is making its way through the legal process.
Dividing Your Property
California is a “community property” state, which means that assets and debts acquired during your marriage will be divided equally when you get divorced.
But not all property is considered “community property.” For example, any assets you had before you were married will be considered your “separate property,” if you kept that property separated from property acquired during the marriage.
The income produced by a separate property investments is also considered separate property, as long as it hasn’t been “commingled,” meaning, that it wasn’t mixed together with community money.
Property you inherit from your family or otherwise gifted to you during your marriage will generally be considered your own separate property if it was willed exclusively to you and you did not commingle it with community assets during the marriage.
It’s important to collect all the information you can about your property, including when you purchased it, approximately how much it’s worth, and details such as account numbers, title documents, VIN or serial numbers, etc. Collecting this information before you see a divorce lawyer can save you a lot of time and money.
A judge can order alimony, which is called “spousal support” in California. A judge will generally consider such factors as:
The standard of living established during the marriage
The duration of the marriage
The needs of each party
The financial resources and liabilities of each party
The impact on the children of having the care-giving spouse working
The contribution of each party to domestic duties and the education and career of the other party
Any tax consequences
All sources of income available to either party
A judge can order temporary spousal support while the divorce is pending. Permanent spousal support is usually ordered for a specific length of time. Once ordered, it can be modified only upon a showing of what is legally defined as a “change in circumstances.”
Child Custody and Visitation
In California, a judge can make custody decisions based on what is determined to be in the “best interest” of the child, but will do so only if the parents can’t come to an agreement between themselves. In deciding which parent should have primary custody, a judge will consider such things as:
Which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent.
The history of contact between the parents and the child.
The health, safety, and welfare of the child.
The mental and physical health of the parents, including any history of continual alcohol or drug usage.
The preference of the child, if the child is intelligent, understanding, and experienced/mature enough to express a preference.
Evidence of child abuse.
After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If a parent is denied court-ordered access to a child, he or she may bring the issue back before the judge to enforce visitation. The judge may decide to modify the custody/visitation order, order makeup visitation for the time missed, or order counseling or mediation, among other options.
In California, child support is based on factors, such as:
The incomes of both parents.
How many children the parent is responsible for supporting.
How much time the children spend with each parent.
If necessary, a judge can set aside a portion of joint or separate assets of the parties to be put into a separate account for the support and education of the parties’ children.
A California child support order can be modified if there has been a “change in circumstances.” Examples of this would include:
A big increase or decrease in either parent’s income.
The child spending a lot more time with the other parent.
The child being several years older or having special financial needs such as schooling or medical expenses.
These are just some of the basic issues involved in a California divorce. Each situation is different, and any particular divorce may involve more or less issues than described above. If one decides, after carefull consideration of all relevant factors, that seeking a divorce is their best option, they should then seek out competent legal counsel to assist them in the process. Although the cost of an attorney is more than various “legal assistance” providers, or self-help type services, a competent and ethical lawyer can help you get through this potentialy traumatic and difficult process effeciently.
Finally, you may have friends, family members, co-workers, or others that may try to give you legal advice about divorce, or share stories with you about their divorce and try to give you advice based on their experience. Yet, remember that only a family law lawyer can provide true “legal advice” when it comes to divorce, as that person has been legally trained and should have years of experience handling divorces. Thus, if contemplating divorce, it is prudent to take legal advice only from a family law lawyer.
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