Divorce or Dissolution of Marriage will return you to the status of an unmarried person. California is a no fault divorce state. That means you do not have to prove the other party did anything wrong. If the parties’ marriage has broken down to the point of no repair, then you have reached irreconcilable differences, and the court will grant a request for a divorce. A divorce is started by filing a Summons and Petition with the proper court.
There are several components of a divorce.
There are two types of custody relating to minor children (under age 18). There is Legal Custody and Physical Custody. Legal Custody is the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. (Family Code §3003.) Physical Custody refers to where the child will reside.
The Court can order joint or sole legal custody. The court will usually order joint legal custody to both parties unless the facts of the case warrant sole custody to one party. "'Joint legal custody' means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." (Family Code §3003.) However, the court can order Sole Legal Custody to one parent. "'Sole legal custody' means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." (Family Code §3006.)
The court can also order joint or sole physical custody. "'Joint physical custody'" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents ...." (Family Code §3004.) "'Sole physical custody' means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation." (Family Code §3007.)
Child Support is based on the income of both parties and the amount of time the child spends with each parent. The legislature has developed a mathematical formula to determine Guideline Child Support. For those individuals who are challenged by math, do not worry. Several computer programs have been developed to do the calculations for us. The court will order guideline child support in most cases. If you would like us to provide you with the amount of child support you can expect to receive or pay, please contact my office and we will run your numbers to determine guideline child support.
Duration of Child Support - Child Support continues until your child reaches age 18. The support will continue past age 18 if your child is a full time student and has not graduated from high school. In that case, the child support will continue until graduation; however, it will not continue past age 19. There are exceptions for disabled children.
“During the pendency of any proceeding for dissolution of marriage or for legal separation of the parties ..., the court may order (a) the husband or wife to pay any amount that is necessary for the support of the wife or husband,....” (Family Code §3600.) Since divorce actions take time, the court will order temporary spousal support as appropriate. For temporary spousal support, the court will use the same computer program discussed under child support to determine guideline spousal support. If you would like us to provide you with the amount of spousal support you can expect to receive or pay, please contact my office and we will run your numbers to determine guideline spousal support.
If you have been married 10 years or more, then California has determined you had a long term marriage. In long term marriages, there is no specific date to terminate the spousal support obligation. In those cases, spousal support will terminate if the receiving party remarries or the death of either party. California will usually terminate spousal support if you can prove the receiving party is cohabitating in a romantic relationship.
California is a Community Property state. That means that everything acquired during your marriage, both assets and debts, are presumed to be community property. During the marriage means from the date of marriage to the date of separation, not divorce. This presumption can be disputed, and an asset or debt can be proven to be separate property which belongs to one party or the other. However, if the asset or debt is community property, you are entitled to half and the other party is entitled to half. You can divide your assets and debts any way both parties agree. When you can not agree, even our Judges can divide by two. All deferred wages earned during marriage are also subject to division, such as, but not limited to, retirement accounts, IRAs, 401Ks, and investment accounts. The amount of each party’s interest in the deferred wages depends on the length of marriage and how long the contributing party works.
The above information is designed to provide a general understanding of your rights and obligations when going through a divorce proceeding. Every case is unique, and there will be questions/issues specific to your situation. I strongly recommend you seek legal advice before you make any final decisions or agreements. Although I believe divorce actions are emotional and often ugly, I encourage all couples to negotiate a settlement if at all possible. However, know your rights and trust the courts to decide issues if you are unable to reach a settlement.
In my experience, child custody is the most emotional issue facing you when you decide to divorce. Financial issues are not fun. It is not desirable for anyone to let go of half their current assets. I make every effort to minimize the impact and changes you will experience during and after a divorce. I am here to help you through one of the difficult times in your family’s life. Thank you for considering my office in assisting you with your legal needs.
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