California Divorce – Different Approaches
There are different types of divorce for the difference situations couples find themselves in. Depending on the issues involved and the parties’ ability to cooperate, one of these approaches will work best. It’s not unusual for a couple to start down one path but end up in another.
Mediation involves an independent party trying to get the parties to agree to a resolution of the disagreements between them so a divorce agreement can be created. A collaborative divorce involves the parties, through their attorneys, negotiating an agreement. Litigation involves resolution of the disputes through a trial.
|Confidentiality||Cost||Time to Resolution||Result|
|Mediation||Documents and information are confidential. Final judgment public.||Least expensive.||Quickest method.||Judgment created, to be approved by a judge.|
|Collaborative Divorce||Same as mediation.||Normally more than mediation, less than litigation.||Slower than mediation, faster than litigation.||Same as mediation.|
|Litigation||Filings, motions, trial all public.||Most expensive.||The longest process.||Judge creates order, which can be appealed.|
Divorce can be a difficult process, but may be necessary to end a relationship that’s going in the wrong direction and for the spouses to start a new and better life.
Either spouse or partner can stop the marriage by filing for divorce. In California, even if the other person doesn’t want a divorce, he or she cannot stop the process. If he or she refuses to participate in the divorce case, there will be a “default” judgment and the divorce will go through.
California is a “no fault” divorce state.
- The spouse or domestic partner seeking the divorce need not prove that the other spouse or domestic partner did something wrong.
- For a no fault divorce, all that needs to plead in a divorce complaint is that there are “irreconcilable differences” between the spouses.
- Incurable insanity can also be a cause for divorce.
Residency requirements must be met for the court to have jurisdiction over the case. One of the parties must be a resident of this state for six months and of the county where the divorce is filed for three months before the filing of the petition.
Once the process starts, there will be temporary restraining orders impacting what you can and cannot do:
- Neither party can take minor children out of the state without the other spouse’s written permission or a court order.
- Neither spouse will be allowed to cancel or change the beneficiaries on insurance policies or transfer property.
- Both spouses will need to inform the other before any unusual spending and be prepared to account for this spending to a judge.
After the filing of the petition, the process of discovery takes place, in which both spouses ask for and receive information and documents. This is a critical stage in the process, especially there are complex finances or a business ownership involved.
Part of the petition is stating the date of separation, which is key when determining property interests. Property acquired by a spouse after the date of separation is considered to be that spouse’s property, while property acquired before that date of separation is community property.
If there’s a dispute as to the date, a judge will look at an objective test (when the spouses starting living apart) and a subjective test (while living apart, when did the couple intend to end the marriage, or when they believed the relationship was over) to come up with a date of separation.
Child Custody & Visitation
What role the spouses play in the upbringing of the couple’s children can be of critical importance. While you may be comfortable sharing custody of your child with your spouse, others may fear that extended exposure to one spouse could potentially harm the child. The parties can agree on a custody and visitation arrangement or the issue can be litigated and be decided by the court.
There are different types of custody:
The parent will be responsible for the physical care of the child.
The custodial parent will live primarily with the child, while the noncustodial parent does not.
This can be temporary (during the divorce process) or permanent.
There may be primary physical custody by one parent, or it may be shared by the parents.
The ability to make decisions about important issues impacting the child, such as health, medical and education issues, extracurricular activities, and anything that is of significance to the child.
This type of custody may be granted to one spouse or shared between the parents, which means they will need to work out any differences. If not, a judge could be asked to decide the issue.
This type of custody can be temporary (during the divorce process) or permanent.
Normally a judge will want custody to be shared. It’s California’s public policy to allow children to have frequent and continuing contact with both parents. If that’s not in the child’s best interest, limited contact with a parent could be ordered. Often parents will share both physical and legal custody, or while one has primary physical custody, legal custody will be shared.
Visitation is one parent being able to spend time with a child, without having legal or physical custody of the child.
The child’s best interest is the most important factor in every child custody case. This is not a well defined standard and the court has wide discretion to create a custody and visitation plan that protects the child’s health, safety, welfare and education.
When a judge creates a custody and visitation plan, he or she will consider many factors, including,
- History of abuse or neglect by a parent.
- The results of a psychological evaluation of the child, family and parents.
- The child’s wishes, if the child is “of sufficient age and capacity to reason.” Those 14 and older can, if they wish, express an opinion about custody issues to the court. The judge isn’t required to follow the child’s wishes. Given the danger of one or both parents coaching the child a court mediator or evaluator may meet privately with the child to learn the child’s real desires then inform the judge.
- The judge will consider whether one parent has been uncooperative concerning a child’s time spent with the other parent and that has adversely affected, or may do so in the future, the child’s relationship with the other parent.
- The emotional bonding the children has with one or both parents. Though time with the child is important, it’s also the level of attention and caring given the child and his or her response and emotional closeness.
- Judges have discretion to decide whether a particular school (or homeschooling) is appropriate for the child, which may impact a custody decision. If the child is doing well in a particular situation, or doing very poorly, given the custody order needs to reflect the child’s best interest, a judge will decide accordingly.
- The law favors preserving siblings’ relationship and bond with each other. Normally significant evidence needs to be shown to separate siblings in child custody cases.
A parent’s gender, race, religion, sexual orientation, disability or finances should not be factors in the decision. As time passes and conditions change, one parent or both can ask the court to change a custody order, or the parents can agree to changes and submit an agreement to the court for approval.
Whether they divorce or not, each parent has a legal responsibility to support his or her child financially. Each parent should provide for the financial needs of the child based on his or her ability to pay. With all the changes that come with a divorce, some things stay the same: children need to be fed, housed, cared for and clothed.
As part of the divorce, there needs to be an order for child support. To write one, the judge will,
- Determine each parent’s ability to pay for the child’s needs based upon his or her finances.
- Use a child support guideline formula to decide which parent will pay support and how much.
Child support calculations are based the state’s child support guidelines. They consider each person’s net disposable monthly income plus the amount of time the child is cared for by each parent. The court considers income from all sources (whether or not it’s reported or taxed under federal and state law) and subtracts certain costs to come up with a net, disposable income.
|Income taken into consideration||Costs taken into consideration|
Earnings from self-employment,
Disability and workers’ compensation benefits,
Rental income, and
Social Security or pension benefits.
Mandatory union dues,
Mandatory retirement contributions,
Child or spousal support being paid, and
Costs of raising other children from other relationships.
A child support order can go beyond basic necessities and include paying for special expenses. This can include child care costs, health insurance, education, special needs or travel to accommodate visitation. Child support payments normally end when the child turn 18 (or 19 if he or she is enrolled in high school full time, living at home and cannot support themselves).
In rare cases you may be able to pay a different level of support than what the guidelines mandate.
- You would need to show the guideline amount is unjust or inappropriate because it’s unfair and not in the child’s best interest for a judge to issue an order for something other than what the guideline indicates should be paid.
- This is normally very difficult because child support is considered the parent’s most important financial obligation.
- A judge generally will not look at other bills and expenses as a basis to order an amount different from the guideline.
After the original order is made, a change can be requested when,
- One or both parents have a significant change in their financial situation that impacts the ability to pay child support, or
- The noncustodial parent agreed to less than guideline child support he or she can request a change without showing any change in circumstances and support will be based on each parent’s current ability to pay child support.
A change in a child support order may make sense if either parent has a significant change related to income, the amount of time spent with the child, support payment for other children or the need to support additional children in the home.
During divorce proceedings it’s common that one spouse will seek spousal support, commonly referred to alimony. Whether spousal support will be granted, the amount and duration is not guaranteed. For spouses who do receive it, spousal support can be a valuable resource to help them start a new life. For those paying it, they may feel it’s an unfair and unnecessary financial burden.
Temporary spousal support can be ordered while the divorce is in process and “permanent” support could be ordered after the divorce is final.
Judges view spousal support as a tool to help a spouse transition from marriage to single life. Courts have the discretion (within limits) to deny spousal support or to limit it in amount and duration. This is decided by the parties’ circumstances in considering their standard of living during their marriage, each person’s needs and ability to pay and the overall fairness of the situation.
The duration of spousal support is linked to the length of the marriage. Unless the spouses can come to an agreement, it’s up to the court using general equitable principals (to determine what’s fair in the situation) and guidelines used over the years by judges. In marriages lasting less than ten years, California statute gives a presumption that support should be granted for half the length of the marriage.
When the need for permanent support is established at the time of trial, the court cannot set a future termination date if the marriage lasted ten or more years. Each case is unique, but courts generally don’t order “lifetime support.”
Under California state law spousal support is determined by a review of a number of factors,
- Whether each party’s earning capacity is enough to maintain the standard of living established during the marriage, considering,
- The marketable skills of the supported party, the job market for people with those skills, the time and cost needed by the supported party to acquire the appropriate education or training to develop those skills and the possible need for retraining or education to acquire other, more marketable skills or employment.
- How the supported party’s current or future earning capacity is impaired by past unemployment which happened during the marriage in order to allow the supported party to devote time to domestic duties.
- How much the supported party contributed to the education, training, career position or a license of the supporting party.
- The ability of the supporting party to pay spousal support, considering his or her earning capacity, earned and unearned income, assets and standard of living.
- The needs of each party based on their standard of living during the marriage.
- The debts and assets, including the separate property, of each party.
- How long the marriage lasted.
- How well the supported party can be employed without unduly interfering with the interests of dependent children in his or her custody.
- The age and health of the parties.
- Evidence of any past domestic violence between the parties, including the emotional distress of the supported party due to the violence by the supporting party.
- Tax consequences to each party.
- Balancing the relative hardships to each party.
- The goal of the support is that the supported party shall be self-supporting within a reasonable period of time.
- Except in the case of a marriage of long duration (ten or more years) a “reasonable period of time” generally shall be half the length of the marriage.
- The court has discretion to order support for a longer or shorter time, based on any factor and the circumstances of the parties.
- The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award.
- Any factor the court decides is just and equitable.
Either party, after a divorce and support order are final, can ask for a change in the amount and/or duration of the spousal support. The party must show a “change in circumstances” or that something significant has changed since the support order was made.
Spousal support normally ends when a court order or judgment states it ends, one party dies or the supported spouse remarries or registers a new domestic partnership.
California is a “community property” state. This is defined as all property and debt that the couple acquired from the date of marriage until the marital cut-off date. Like the other issues involving a divorce, unless there’s an agreement amongst the parties, a judge will decide this issue and split this community property equally. But what is community property can be disputed by the parties.
There are three types of property.
|Community||Defined by statute as “all property, real or personal, wherever situated, acquired by a married person during the married while domiciled in this state.”
The market value of this property is evenly split.
A spouse owns a half interest in the other spouse’s regular income, unless it’s derived from a separate property.
Each item is evaluated and distributed on a case-by-case basis. Neither spouse can claim “half ownership” of any specific asset.
When assets are large, such as a home or vehicle, both spouses should be awarded equalized assets by the end of the process.
|Quasi-Community||Property owned or acquired in another state prior to a move to California. This is treated much like community property.
|Separate||Property acquired before the marriage or after the divorce process is kept by the respective party.
Any property received as a gift or as an inheritance during the marriage is also considered separate property.
If the parties’ economic situation warrants it, the judge may award an asset of the community estate to one party so that overall the division of the community estate will be substantially equal. A judge can award from a party’s share an amount that’s been deliberately misappropriated by one party to the exclusion of the other.
A prenuptial agreement is a means to avoid future conflicts and misunderstandings in case a marriage ends in divorce. Having one done doesn’t mean the parties assume there will be a divorce or there is less than a full commitment by the parties. All it means is that the future spouses are thinking ahead and being pro-active to prevent future potential problems.
A prenuptial agreement can be especially helpful if one or both spouses have substantial assets or if this is not the first marriage and the parties have children from previous relationships. Even if you don’t fall into these categories, a prenuptial agreement has many benefits, including making you and your future spouse talk about your plans, finances and debts, which is a good thing to do before you marry.
Here are five benefits to having a prenuptial agreement made.
|Community property||California is a community property state when it comes to property division in a divorce. If the parties don’t want the assets and debts they’ve obtained during the marriage to be evenly split, a prenuptial agreement can spell out how things should be divided in a divorce.
|Spousal support waiver||Under certain circumstances a spouse can waive his or her rights to spousal support. One spouse may negotiate to get some other benefit or asset instead.
|Financial rights||The parties can clarify their financial rights and responsibilities.
|Debt protection||Spouses can agree that each one is responsible to pay debts they incurred individually during the marriage.
|Protect your business||In case of a divorce without a prenuptial agreement covering the issue, an ex-spouse may gain an ownership interest in a business developed by the other ex-spouse. Who has what rights to the business can be spelled out in a prenuptial agreement.
There are limits to what a prenuptial agreement can cover. They cannot impact child custody, visitation or support rights. There also cannot be penalties for drug use or infidelity.
Both parties should have their own attorneys so they can learn about legal rights created due to the marital relationship and the full impact on those rights of the agreement.
Getting a divorce can be a difficult and painful process, but it doesn’t have to be that way. The attorneys at Fischer & Van Thiel, LLP, know the personal, emotional, legal and financial challenges a person getting a divorce faces. We support our clients to make sure their interests are met and their legal rights fully enforced and protected.
If you have any questions about divorce or any other family law issue, contact our office. Visit our website at www.fischervanthiel.com or call our firm at 858-981-6211.
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The content of this paper is provided for informational purposes only and does not constitute legal advice. Photo by Tom Caswell.
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