San Diego is the first area in California to which Europeans arrived in 1542. Today, about 1.3 million people call San Diego home. The city’s motto is “Semper Vigilans” which is Latin for “Ever Vigilant,” and is an appropriate motto for a city which counts the U.S. Navy as its largest employer.
Among San Diego’s diverse residents are those starting a new life by saying their marriage vows, as well as those who are moving on to new lives by obtaining a divorce. Some see divorce as a sad ending to a marriage. Others see divorce as a chance to make a fresh start. In either case, if you are thinking of divorce or are the respondent to a petition for divorce, it would be wise to consult with an attorney to protect your best interests.
For most couples, the issue of child custody can be the most emotional of the decisions related to divorce which must be made. Each parent may wish to be the primary custodial guardian, and this is not possible. Except in the instance of abuse or other extreme factors, child custody will need to be shared.
If the couple cannot decide on a child custody arrangement, the judge will make a decision that is in the child’s best interests. Rather than leave the custody decision to chance in the courtroom, it is typically a good idea for the parents to come to a child custody agreement.
There are two types of child custody:
- Legal custody: the ability to make decisions regarding medical care, religious upbringing and other similar factors
- Physical custody: the physical location of the child
Either legal or physical custody may be joint or shared. The most common arrangement is for joint legal custody and shared physical custody. A parenting plan or time-share plan is used to schedule the shared physical custody.
Occasionally a parent will want to move, and take the children to a new location. This cannot be done without permission and a post-divorce modification. Potential reasons to move include obtaining a new job, moving to be near relatives or returning to a home state. When deciding whether to allow the move of the children, the judge will approve or deny the request depending upon the best interest of the child or children.
Divorce can be the catalyst to a number of other issues, including issues affecting people outside the immediate family. The enforcement of grandparents’ rights is a good example of this. After divorce, the grandparents may need to petition the court for the right to maintain contact with their grandchildren. If a spouse dies, the surviving spouse may wish to deny contact with the former in-laws. Grandparents can enlist the services of a family law and divorce attorney to maintain contact with their deceased son’s or daughter’s children.
When the income level of the two parents is not equal, or the child custody time is not split 50/50, one parent may need to pay the other parent for support of the child. Child support is based upon a basic formula determined by the state. Although the formula is predetermined, the financial numbers that go into the formula can vary greatly. The assistance of an attorney is advised.
San Diego’s largest employer is the U.S. Navy, with more than 30,000 employees and service members. The city is the location of U.S. Navy facilities as well as Marine Corps bases and Coast Guard stations and is known as the “birthplace of naval aviation.” As a large military employer, the city is no stranger to military divorce proceedings.
In some ways a military divorce is like any other divorce, although in many ways it is very different.
Divorce Waiting Period For Service Members
If a couple was married in one state, files taxes in another state and is currently stationed in San Diego, where should they file for divorce? The short answer to that question is that it depends. California is certainly an option, as long as the residency requirements are met. One spouse must have lived within California for six months, and in the county where the divorce is filed for three months prior to the divorce.
Another important difference is the deadline to respond to a petition for divorce. In a civilian divorce the petitioner (the one asking for the divorce) files for divorce and the respondent (the other spouse) has 30 days to respond from the date he or she was served with the Summons and Petition. The 30 days may not be possible if a military member is serving abroad.
The Servicemembers Civil Relief Act (SCRA) provides a wide range of protections for deployed service members. An active duty service member could be protected by SCRA from the negative consequences of not being able to meet the 30-day divorce deadline to respond.
Child custody is another important consideration in military divorce. A parenting plan for a member of the military might look very different than the parenting plan of a civilian couple.
San Diego, California, follows community property laws during divorce, which essentially means that the assets and debts are divided equitably. An equitable division is a fair division, and is different than an equal division which would be exactly 50 percent to each spouse. In an equitable division there are considerations such as:
- The income-earning potential of each spouse
- Health considerations (if one spouse is unable to work, for example)
- Past financial contributions (if one spouse put the other through medical school, for example)
- The inability to divide some items (the family pet or a piece of artwork)
- Premarital assets
When a couple divorces, one spouse may be ordered to pay spousal support, or alimony, to the other. This typically happens when one spouse was the primary parent or when the couple’s income or earning ability is unequal. There are several types of spousal support which could be ordered by the court:
- Temporary spousal support: an amount awarded during the divorce proceedings
- Rehabilitative spousal support: an amount intended to get the stay-at-home spouse time to retrain or gain education to join the workforce
- Permanent spousal support: an amount awarded that is typically determined according to the length of the marriage
- Reimbursement spousal support: an amount awarded for one spouse to reimburse the other for support during schooling, for example
When the situation changes, it may be necessary to obtain a post-divorce modification to change the spousal support, child support or child custody. Situations which call for a post-divorce modification include change of job, relocation, loss of job or medical issues on the part of either ex-spouse, or the children the ex-spouses share.
Divorce And Debt
According to a Harvard study, the top five reasons for bankruptcy are: medical or health issues, loss of employment, poor or excessive credit card use, divorce and unexpected issues such as flood, fire or other calamities.
It’s important to remember that your assets as well as debts are split during divorce. If your spouse is hiding a $20,000 credit card debt, that debt is yours as well. If your spouse is ordered to pay that credit card debt as part of the divorce, and doesn’t pay it, the debt is still yours and creditors can attempt to collect it from you. If your spouse discharges that debt in bankruptcy, it won’t stop the creditors from coming after you for payment.
Divorce and debt or bankruptcy should be handled carefully. Your divorce attorney can work to protect you from the financial mishaps of your ex-spouse.
Although San Francisco has a national reputation for being LGBT-friendly, it could surprise many to learn that San Diego was named the ninth most LGBT-friendly city in the U.S., and the city has the seventh-highest percentage of gay residents according to the U.S. Census Bureau. In 2013, San Diego State University (SDSU) was named one of the top LGBT-friendly campuses in the nation. In addition, California is one of the growing numbers of states which has made same-sex marriage legal.
It stands to reason that a number of gay couples have gotten married in San Diego, and inevitably some of those marriages will result in divorce. The legal issues related to same-sex divorce are largely the same as heterosexual divorce. Those issues relate to child custody, division of property and child support or spousal support. There are a few differences, however, which could require the attention of a divorce lawyer with same-sex divorce experience.
For example, if the couple was in a registered partnership prior to marrying, how does that impact the community property determination? Conversely, if the couple did not marry until it was legal to do so, and was in a committed relationship for years prior to their marriage, what date is used as the beginning of community property? These are just a few of the many questions which an experienced divorce attorney could answer.
Domestic violence, also called Intimate Partner Violence (IPV), affects 24 percent of women and nearly 14 percent of men according to the Centers for Disease Prevention and Control. The CDC estimates the annual cost of IPV at more than $8 billion for partner rape, physical assault, stalking and fatalities.
Divorcing spouses who are survivors of domestic violence may be able to obtain sole legal and physical custody of any children from the marriage. When abuse is involved, the parent accused of abuse may be denied any visitation with the children.
Whether you are a survivor of domestic violence, or are falsely accused of domestic violence, a skilled and experienced attorney is critical to obtaining the legal outcome you desire.
When you are in the process of divorce, you could be a bundle of emotions ranging from despair and depression to anger and anxiety. A divorce attorney can help you see beyond the emotions and help you obtain the desired result in terms of child custody, division of property or support. Without an attorney, you could make a decision in the heat of the moment which could have long-term consequences.
How To Choose A Divorce Lawyer
Each person who is divorcing has a unique set of needs and desires. For some, maintaining contact with the children is most important. For others, the main issue may be retirement funds or the allocation of the community property.
It is important that you find a divorce attorney who has a track record of experience in the issues which are important to you. In the case of a military divorce or same-sex divorce this can be especially important.
Look for an attorney who focuses on family law in general and divorce in particular. An in-person meeting is also recommended so you can obtain a sense of the attorney’s communication style as well. If you are considering a divorce, or are the respondent to a request for divorce, fill out the free case review form today and we will put you in contact with an experienced San Diego divorce attorney today.