When people say, “I do,” they are seldom thinking that the marriage won’t work out. A couple getting married sees success, not failure. If they become parents, the couple shares the dream of dancing at the weddings of their children.
Sadly, marriages don’t always work out. Sometimes people just change and drift apart. At other times there is real damage done by abuse or other issues. Whether you are the one who is asking for the divorce, or are the one who was just served papers, you may have many of the same questions and concerns. A California attorney dedicated to family law in general, and divorce in particular, can answer those questions.
- ADR Available: Yes
- Fault or No Fault: No Fault
- Parenting Plan Required: No
- Property Distribution: Community
Grounds For Divorce In California
Divorce in California, as in most states across our nation, follows no-fault divorce rules. Essentially this means that if one spouse wants a divorce, technically called “dissolution of marriage,” the judge will grant one. There is no fault or guilty party assigned to the divorce. There may be significant negotiating prior to the official divorce decree, although ultimately, the knot will be untied.
California is one of the few states which recognizes marriage as well as domestic partnerships and same-sex marriages. In many ways the dissolution of a same-sex marriage is exactly the same as a divorce. One of the differences may be if the same-sex couple had a registered domestic partnership prior to getting married. Also, same-sex marriages are treated differently for federal tax purposes.
Summary Dissolution Of Marriage
In some instances same-sex spouses can choose to get a summary dissolution of their marriage and domestic partnership at the same time. A summary dissolution, available to married couples also, takes less time compared to dissolution of marriage, although there are a number of restrictions including:
- The couple must have been married or in a registered domestic partnership for less than five years.
- The couple cannot have children from the union (adopted or born) and neither spouse can be pregnant.
- Joint assets accumulated during the marriage are limited to $40,000.
- Individual assets are limited to $40,000.
- Debts acquired during the marriage are limited to $6,000.
There are additional requirements which must be met. A summary dissolution can be quick, although it carries a financial risk because a judge is not required to complete the process and the parties may not be protected by legal advice.
How Long Does Divorce Take?
Once a couple has decided to divorce, one or both spouses may wish to have the process move as quickly as possible. There are several factors which can slow down a divorce, one of which is the waiting period.
In California a divorce will not be granted until six months after the official date one spouse asks the other for a divorce. In addition, there are two residency requirements for a divorce which must both be met. They are:
- One spouse must have lived within California for six months prior to the divorce.
- One spouse must have lived in the county where the divorce is filed for three months prior to the divorce.
A judge will rule on a legal separation which has many of the same requirements as a divorce. The judge’s decisions are related to:
- Child custody
- Dissolution of property (assets as well as debts)
- Visitation or parenting plans
- Support (child support and spousal support)
While a couple is legally separated, they cannot remarry. Some who choose legal separation use it as a sort of trial divorce. Others use it as a more permanent option. For example, if one spouse needs the other spouse’s health insurance, the couple could choose to become legally separated rather than divorce.
An annulment is the third option for marriage dissolution. It is a way of stating that a marriage was never valid. Legal reasons for an annulment include:
- One spouse was already married or in a registered domestic partnership at the time of the marriage
- One or both spouses were not 18 years old at the time of the marriage
- One partner committed fraud to enter the marriage (marrying only for a green card, for example)
- Spouses are close blood relatives (incest)
When there are children from the marriage, issues involving child custody can be very emotional and generate strong feelings from both parents. Years ago there was a preference for primary physical custody going to the mother. That is no longer true. If there is a trend in the U.S. as well as California, it is for joint physical custody which necessitates a working relationship between the parents.
Child Custody Determinations – In The Best Interest Of The Child
There are several types of child custody. In an ideal world the parents will agree on a child custody arrangement and the judge will approve it. Judges, however, must always act in the child’s best interest, and may determine that the parents’ plan is not in the best interest of the child. The three basic types of child custody are:
- Joint legal custody: Each parent can make important decisions about the welfare of the child. For example, if a child is with one parent and a medical situation occurs, the parent who has the child can approve emergency medical treatment. Legal considerations also include religious upbringing.
- Joint physical custody: Each parent has the physical custody of the child for approximately half the time. The timing of this arrangement becomes the visitation or parenting plan.
- Sole physical custody: One parent has the primary home location where the children live, and the other parent has visitation rights. Occasionally the sole physical custody parent will also have sole legal custody, although this is not common.
Visitation Or Parenting Plans
The type of parenting plan a couple decides upon will depend upon the child custody arrangement. Once agreed upon, each parent is required, within reason, to follow the plan. The types of visitation or time share plans are:
- Joint parenting plan: The children spend equal amounts of time with each parent. This is typically an every-other-week arrangement.
- Scheduled visitation: If one parent has sole physical custody, a common plan is for the noncustodial parent to have the children every other weekend, and one weekday visit per week.
- Reasonable visitation: This is an open-ended arrangement for parents who communicate openly and regularly, and can agree upon a schedule on an ad-hoc basis.
- Supervised visitation: This would require another adult to be present during visitation with the noncustodial parent. An example of when it might be used is if a young child had not seen one parent for a long time, and the custodial parent or other adult could help the child feel comfortable during the visit.
- No visitation: In some instances, where abuse is involved, for example, a parent is denied all visitation time.
The state of California has a formula to determine the amount one parent pays to the other parent for child support. It has many factors, and like child custody, the judge can make a decision that is in the “best interest of the child.”
Although physical custody is a determining factor, so too is the amount of income each parent earns. To use round numbers, one couple with a family income of $100,000 (each parent earning $50,000) and with joint custody may not owe any child support, with other factors being equal. Another couple with a household income of $100,000, all earned by one parent, may require child support to the stay-at-home parent, even if the child custody is joint.
The factors which contribute to the amount of child support are:
- Income or potential income of each parent
- Number of children the couple have together
- Child custody determinations (parenting plan)
- Child support owed to children outside the marriage
- Health insurance, dues and mandatory retirement contributions
- Day care costs and uninsured health care costs
Keep in mind that each of the above items will need to be verified. California has created an online calculator to get a rough idea of how much child support you may need to pay, or could receive, although the advice of an attorney is recommended.
If a parent is ordered to pay child support, and the parent does not make the payments, the parent recipient can take legal steps to obtain payment. Child support enforcement will add interest to the payments.
Occasionally a parent will request a paternity test to either compel or deny child custody or child support. This is a complicated area of law and an area which parents should not navigate without the assistance of an attorney. For example, even if a paternity test shows that a husband is not the biological father of a child, if the husband raised the child from infancy to 12 years of age, he could still be required to pay child support. The husband in this case is the presumed parent.
In some instances a couple can sit down with a yellow legal pad, write up their assets and debts and split them down the middle. Most divorces are more complicated than that, however, and untangling the marital assets is like unweaving a rug. It can be done if one is careful and thorough.
Division of marital property is not only the division of the assets, but it is also a division of the debts. Anything which was earned or acquired during the marriage is marital property. For example, even though a 401(k) is one spouse’s name, any contributions made during the marriage belong to both spouses. Likewise, if one spouse had a secret credit card and amassed $12,000 in debt, that credit card bill belongs to both spouses.
The types of property and debts which are divided include:
- Real estate property such as the primary home and vacation property
- Cars, trucks, motorcycles, boats and other similar items
- Collections of objects (gun collection or art collection)
- Retirement funds (IRAs, 401(k)s and SEPs)
- Investments (stocks, bonds, gold)
- Credit cards and other similar debt
- Furniture and clothing
The division of property also applies to items which are hard to value, such as a patent or ownership of a small business. In addition, there is some property that is impossible to split, such as the family dog or a specific piece of artwork.
The division of property does not apply to property such as premarital assets and property bought with inheritance money.
Like child custody, the division of property can become a contentious issue. One spouse may attempt to hide assets in an offshore account. Another spouse may claim that premarital assets are actually martial assets.
Alimony Or Spousal Support
Spousal support, formerly called alimony, is an amount of money which the court determines one spouse needs to pay to the other spouse. Support applies to both domestic partnerships (partner support) and marriages (spousal support). The considerations include:
- Length of the marriage or partnership
- Standard of living
- Temporary support (support until the divorce is final)
- Income or income-earning capacity
- Age and health of each person
- Child-care considerations
- Debt and property
- Past contribution to the education, training, career or professional license of the other
- Domestic violence
Support is rarely permanent, as it was in the past. Today, support typically lasts for half the length of the marriage. In addition, a judge can award temporary support for the period of time until the divorce proceedings are final.