Divorce in California
Divorce, otherwise known as the dissolution of marriage, is the legal process in which a couple terminates their marital union or dissolves the bonds of matrimony between the couple. When you go through a divorce, you are, in effect, canceling your legal marital duties and responsibilities to your spouse. If you decide to go through a divorce from your spouse, there are many issues that you and your spouse must address. These issues can be difficult and complex. An experienced California divorce lawyer at Wallin & Klarich will explain to you in detail the various different issues that are addressed in a divorce, as well as advise you on whether divorce, legal separation, or an annulment would benefit you.
If you want to get a divorce in the State of California, either you or your spouse must have been a resident of California for at least six months. Once the divorce has been filed and served to your spouse, then you must wait at least six months for the divorce to be finalized.
Grounds for Divorce
The State of California has adopted the no-fault divorce system. This means that in California, you do not need to provide any allegations of fault to get a divorce. Normally, in California, when you file for a divorce, you can cite “irreconcilable differences” as the basis for the divorce. However, although fault is not a basis for a divorce, fault can still be used by the court to determine other issues, such as child custody or alimony.
Division of Property
California is a community property state. Thus, all property and debt that is acquired during marriage is considered community property and it will be shared equally between you and your spouse upon divorce. All other property and debt acquired before marriage, after divorce, or as a gift or inheritance is considered separate property. This means that separate property belongs only to you and your spouse will get no share upon divorce. The main issue in a divorce is which property is considered community property and separate property. An experienced divorce attorney can determine which asset or debt is community property or separate property.
Alimony, otherwise known as spousal support, is paid by one divorcing or separating spouse (or domestic partner) to another. Alimony may be awarded on a temporary basis during the divorce, or the court can make alimony permanent. Spousal support payments may be changed to accommodate your or your spouse’s financial and personal changes. Thus, spousal support depends on your or your spouse’s marital circumstance.
Child Custody and Child Support
When you get a divorce, most California family courts will grant joint custody of the children to you and your spouse. But there are times when joint custody is not in the best interest of the child. Thus, in such situations, you may be granted sole custody over your children while your spouse will be granted visitation rights.
When it comes to child support, normally California family courts want you and your spouse to support your child after divorce. Thus, courts will look at the financial situation of you and your spouse to determine how much child support you or your spouse owes. The courts also look at whether you or the other parent spends more time with your child. If you spend more time with your child, you would owe less in child support.
If you and your spouse are looking for a quick and easy divorce, you can file a Joint Petition for Summary Dissolution. With a summary dissolution, you will not need to appear in front a judge. But to qualify for a summary dissolution, you and your spouse must meet all of the following requirements:
• Have been married for less than 5 years, which is determined from the date you and your spouse got married to the date you and your spouse separated;
• Have no children together, born or adopted, before or during the marriage. In addition, you may not be expecting a new child together;
• Do not own any interest in any real property, with the exception of the lease of a residence occupied by either party which satisfies the following requirements:
o The lease does not include an option to purchase; and
o The lease terminates within one year from the date of the filing of the petition.
• Do not owe more than $6,000 for debts acquired since the date you got married. Car loans do not count;
• Have less than $38,000 worth of property acquired during the marriage, also known as community property. Cars do not count;
• Do not have separate property worth more than $38,000. Cars do not count;
• You and your spouse must agree that neither spouse will receive spousal support; and
• Have signed an agreement that divides your property, including your cars, and debts.
In addition to meeting the requirements above, you must meet certain residency requirements. Either you or your spouse must have lived in California for the last six months and in the county where you file the Petition for Summary Dissolution for the last three months, prior to filing the Petition for Summary Dissolution.
California Divorce Process
During the California divorce process, there are certain requirements that must be met.
In the State of California, when you file for dissolution of marriage, you must meet the residency requirement set forth in California Family Code Section 2320(a). The residency requirement includes the following:
• You or your spouse must have been a resident of the county in which the proceeding is filed for three months preceding the filing of the petition.
If this residency requirement is not met, you or your spouse may not file for dissolution of marriage. In these cases, you may only file for legal separation. But you may also wait until enough time has passed so that you meet the residency requirement. Once enough time has passed, you may file an “amended petition” and ask the court for a divorce.
If you and your spouse have lived in California for at least six months, but in different counties for at least three months, you may file for dissolution of marriage in either county.
Grounds for Dissolution of Marriage
Under California Family Code Section 2310, when you file for dissolution of marriage, you must indicate the grounds for dissolution of marriage. In the petition you may select as grounds for dissolution of marriage “irreconcilable differences, which have caused the irremediable breakdown of the marriage.” California Family Code Section 2311 defines “irreconcilable differences” as “those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.”Another ground for dissolution of a marriage listed under California Family Code Section 2310 is “incurable insanity.” Under California Family Code Section 2312, “a marriage may be dissolved on the grounds of incurable insanity only upon proof, including competent medical or psychiatric testimony, that the insane spouse was at the time the petition was filed, and remains, incurably insane.”
Difference between Divorce, Legal Separation, and Annulment
If you wish to terminate your marital relationship to your spouse, there are many other options in California to choose from. The three options you may choose include divorce, legal separation, or an annulment. Our experienced divorce attorneys will explain the differences between these options and the advantages and disadvantages of each option.
Legal separation, otherwise known as a judicial separation, is the legal process in which a married couple formalizes their separation. With a legal separation, you may separate from your spouse, but you and your spouse would remain legally married. Thus, you and your spouse cannot remarry. Legal separations are granted through a court order. A legal separation is akin to a divorce in that similar issues are addressed in a legal separation as is in a divorce. These issues include child custody, child support, alimony, and division of assets. When you decide to get a legal separation, you and your spouse would set up a separation agreement, which outlines the rights and responsibilities of each spouse.
Legal separations are beneficial to those couples who do not wish to terminate certain rights, such as rights to social security or medical benefits. In addition, legal separations do not take as long as divorces. Lastly, if you and your spouse decide to go through with a divorce, the court would use the separation agreement as a template for the divorce settlement agreement.
When you and your spouse get an annulment, the court is proclaiming that your marriage is null and void. Thus, with an annulment, your marriage is considered to be invalid from the inception of the marital union to the finalization of the annulment.
There are two types of annulments: religious and civil. The grounds for annulments differ between religious and civil annulments. With religious annulments, each religion has their unique rules or grounds for an annulment. With a civil annulment, the general grounds include fraud, misunderstanding, concealment, or inability to consummate the marriage.
California Divorce FAQs
If child support is set by a state-mandated formula, why do I need to hire a divorce attorney?
The amount of child support is determined using a state formula based on income. However, determining someone’s income can be a very difficult task. Hiring an experienced divorce attorney can assist you in making certain that the court awards the proper amount of child support in your case.
How can I get spousal support and how long can I receive payment?
California Family Code Laws have set guidelines for determining spousal support. The judge handling your case will make spousal support decisions based on the arguments provided by your divorce attorney. In short-term marriages, spousal support may be available for half the length of the marriage. For longer marriages, spousal support may be awarded to a spouse for life. Your divorce attorney from Wallin & Klarich can provide you with more details based on the specific facts of your case.
Once I have filed for divorce, can I stop the proceeding if I reconcile with my spouse?
Yes. If you decide that you want to give your marriage another try, during any stage of your divorce proceeding, you or your divorce attorney can file to have your petition for marital dissolution dismissed. However, if at any future date you decide that you want to continue with your divorce, you must start the divorce process from the beginning. It should be noted that if your spouse was the one who filed for divorce, you cannot stop the divorce by yourself. You must convince your spouse to file a dismissal.
California Divorce Lawyer
Divorces are usually difficult and costly (we also offer cost-effective limited representation services) for a family. Thus, it is important to have an experienced California divorce lawyer to review your case and advise you on the best option for each complex divorce issue. Wallin & Klarich has handled divorces cases and other family law matters for more than 30 years. You can rely on Wallin & Klarich to attain the best possible result for your case.
If you are going through a divorce, it is essential that you get the assistance of an experienced divorce attorney from Wallin & Klarich. With offices located in Los Angeles, Orange, Riverside, San Bernardino, San Diego, Victorville, West Covina, Sherman Oaks, Torrance and Ventura , there is a Wallin & Klarich attorney available wherever you happen to live. To speak with an experienced California divorce lawyer about your case, please call us today at (888) 749-7428 or visit www.wkfamilylaw.com to fill out the online consultation form.