Family Law - Divorce
- Residency : To get a divorce in California , the spouse filing for divorce must have been a resident of the state of California for at least 6 months, and a resident of the county where the divorce will be filed during the 3 months prior to filing.
- Waiting Period : There is a waiting period of 6 months after service of process or respondent spouse's appearance before a divorce becomes final.
- Legal Grounds : There are two grounds available to get a divorce in California : (1) No-Fault, which is defined as irreconcilable differences which have caused the immediate breakdown of the marriage, and (2) Incurable Insanity. Either of these grounds may be used to get a divorce in California
Basic Procedure
- The Petitioner spouse must file a California divorce form called a Petition for Dissolution of Marriage in any Superior Court of California for which they qualify under state residency requirements. The divorce action may proceed in any county in which either spouse lived during the 3 months prior to filing.
- The Respondent spouse must be served with process and must file a response within 30 days
- If the Respondent does not answer, the Petitioner may file a California divorce form called a request to enter default and proceed with the divorce without the participation of the other spouse
- Domestic Partnerships may terminate the partnership by filing forms available at the county clerk or Secretary of State's office.
Divorce With Children
One of the most important aspects of any divorce in which children are involved is the determination of child custody and support. You can tell the court what agreements you and your spouse have come to regarding these topics in your California divorce papers.
Child Custody
A court will order either joint or sole custody of each child based on the child's best interests. There are several factors that may be weighed in this determination, including each parent's level of cooperation, the child's health, safety and welfare, any history of child abuse, the nature and amount of contact with both parents, any history of drugs or alcohol and marital misconduct.
Custody is generally awarded to both parents jointly or to either parent. There is neither a pretense or presumption for or against joint legal custody, just physical custody or sole custody, but instead, the court has wide discretion to choose the parenting plan that is in the best interest of the child.
CHILD SUPPORT
The court may order either parent to pay an amount necessary for the support, maintenance and education of each child. These payments may be temporary, and the state will mandate a minimum level of child support unless it finds that the parties have created their own reasonable agreement. You can tell the court what agreements you and your spouse have come to regarding child support in your California divorce papers.
Uncontested Divorce
If both parties are in full agreement on all the major issues in a divorce, they can typically proceed by filing an uncontested divorce in California (sometimes called a “joint” or “consent” divorce. Uncontested divorce procedures are generally simpler than contested divorces. In addition, one or both of the parties in an uncontested divorce often do not have to appear in court.
Property Division
California is a community property state, which means that all assets acquired during the marriage except gifts and inheritance are divided equally between the spouses unless they agree otherwise in an uncontested divorce in California . Any property obtained during this time is presumed to be community property unless it is clearly stated as separate property in a deed or other written instrument. Community property is typically in the form of wages, real property and personal property, but may encompass other assets.
Other Assets: Retirement Benefits
Accrued or vested retirement benefits are community property, thus subject to division in a dissolution action. The retirement benefits which are subject to this community property application include military pensions, veterans educational benefits, ERISA funds, IRAs, Keoghs, Employee Stock Option Plans (ESOPS), 401K and 403K plans, etc.
Certain benefits are not considered community property. They include railroad retirement benefits, social security payments, compensation for military injuries, and generally worker's compensation disability awards. In all dissolution actions, no matter the length of the marriage, the issue of retirement benefits should be settled one way or the other.
In the case of a division, there are two options:
(1) The present-day valuation buy-out, and
(2) Division into two accounts.
In the first option, the non-employee spouse trades his or her interest for something else of equal value, such as cash or other assets.
If the retirement account is to be divided, special attention must be paid so that the tax advantages of retirement benefits are not lost. A Qualified Domestic Relations Order (QDRO) will be required to transfer a share of retirement funds from the spouse participating in the retirement plan to the other spouse.
Debts
Generally, spouses are equally liable for debts incurred during the marriage. However, a spouse is not responsible for debts incurred by the other spouse both prior to marriage (separate debts) and in the period of separation before dissolution (as long as the debt did not benefit the community).
Spousal Support
Spousal Support, previously called alimony, is not typically ordered for spouses who are capable of working and taking care of themselves after the divorce. For those who do not have this capability, courts will often award a just and reasonable amount of support based on the spouse's standard of living during the marriage. Many factors are weighed in this determination, which may include child caretaking, time required to find another job, future earnings capacity, length of the marriage, comparative financial resources between the spouses, ability of the other spouse to pay, age and health, physical and emotional conditions, tax consequences to each, the balance of hardships and other factors.
Temporary Court Orders
A spouse may apply for the court to issue certain temporary orders including:
- Restraining Order to prevent a spouse from approaching or contacting the other spouse, or to move out of the home
- Order prohibiting the other spouse to sell valuable assets
- Order granting possession of the family home or car to one of the spouses
Spouse's Name
On a party's request, the court shall restore a spouse's former or birth name regardless of the last name of any custodial child.
|
