Divorce Law in California
The experienced attorneys at Fischer & Van Thiel in Oceanside, CA have been successfully representing numerous clients through divorce proceedings. From the initial first steps, through to filing the action and the asset negotiations; our experienced divorce attorneys can walk you through each phase of your divorce with informed and knowledgeable advice.
If you are currently considering a divorce we urge you to reach out to one of our divorce attorneys for assistance and to read through the following information which provides a brief overview of divorce law in California. The material provided below applies to opposite-sex married couples, legally married same-sex couples, and registered domestic partners who wish to legally dissolve their relationship.
Grounds for Divorce in California
California is a no-fault divorce state, which means that neither party is required to prove that one person was the cause for the breakdown of the marriage. In California, either spouse is able to file for divorce based on ‘irreconcilable differences’. The majority of divorces file under those grounds but there is also the option to file for divorce based on incurable insanity. A divorce lawyer will be able to help you provide the sufficient proof that a judge would require in order to file under these grounds.
In general, in order to file for divorce in Oceanside, at least one party must reside in California for six months before filing the petition for dissolution. There are some additional rules to the residency requirement and exceptions which your divorce lawyer will be able to advice on if applicable.
California Summary Dissolution
The courts in California have two main processes for getting a divorce; the regular divorce process and the simple divorce process which is called summary dissolution. Couples that meet the following criteria may be able to use the streamlined and more efficient summary dissolution process. The couple must;
- Have been married for less than five years,
- Have no offspring,
- Have no real estate holdings, and
- Have relatively limited assets and debts.
The summary dissolution process is a much simpler and proficient procedure, which often doesn’t require an appearance before a judge by either party. The process is made simple by the parties jointly creating an agreement about the division of property and debts, which is filed along with a joint divorce petition in the courts. The couple still has to wait six months before the divorce is decreed but summary dissolution avoids a lot of the administration and court appearances required for a regular divorce.
Regular Divorce in California
If you aren’t able to use the summary dissolution procedure then you will follow the traditional dissolution process which involves the below steps:
- A divorce petition is served by one spouse to the other.
- The respondent spouse then has 30 days to file a response within the courts.
- Temporary court orders may be requested by filing for an ‘Order to Show Cause’ hearing motion where a judge will make temporary child custody, support, and if needed, restraining orders.
- The discovery process will then begin which is where the parties exchange information and documents that are relevant to the divorce. Court forms will have to be completed in which each spouse lists both the community and individual property owned. Both spouses are also required to exchange income and expense declarations stating all their financial worth.
- Once the discovery process is complete, the spouses and their divorce lawyer will negotiate settlement terms and if the case is resolved by a mutual agreement, a Marital Settlement Agreement will be prepared which will state all of the terms of the agreement. This is a binding legal contract that is signed by both parties and their attorneys.
- If the parties are unable to settle upon an agreement and the negotiations breakdown, a trial will become necessary. The information provided at discovery will be presented in court and a judge will determine the terms of the divorce.
- Once the Marital Settlement Agreement has been signed or at the conclusion of the trial, a Judgment of Dissolution of Marriage will be drawn up. This document contains all of the court’s orders in relation to the resolving terms of the divorce. The judgment will be filed at the court and a Notice of Entry of Judgment is sent to each attorney. This finalizes the divorce and the legal process.
Division of Assets in a California Divorce
In California all assets, including your home, income, savings and personal property acquired during the marriage is considered community property and will be divided equally between the couple. Any debts acquired during the marriage will also be divided equally. How the assets and debt will be divided can be decided by the court or by the couple if they are able to agree on a division strategy. When examining any communal property, it is important to remember that any property that was acquired before the marriage, after separating, or by bequest/inheritance will remain the separate property of the spouse who acquired it. If you are unsure as to which assets are included or not in the community property, please seek the help of a skilled divorce lawyer at Fischer & Van Thiel to ensure that all property is suitably allocated.
Long-term Divorce Considerations
Before you reach for the phone and contact a divorce lawyer to get your paperwork started, there are several considerations that you should fully understand which can have serious long-term implications. Therefore, before you take any official steps please take the time to contemplate the below factors and discuss them with your partner:
- Alimony: Where one spouse has given up their career or income to care for the family, the other spouse may be required to provide financial support after the divorce. The spouse which is unable to financially support themselves will require assistance in order to develop skills for the job market and to remain living the lifestyle of which they are accustomed. To determine the amount of alimony awarded, the court will consider several factors including each spouse’s income, the standard of living during the marriage, the age and health of each spouse, and the length of the marriage. It is common with short term marriages (less than 10 years), for the court to order support to be paid for half the marriage duration. Therefore, if you were married for 10 years, the paying spouse will be obligated to pay alimony for up to 5 years. For a longer marriage, alimony is typically paid until the recipient spouse is self-supporting or remarried, however, it is not unusual for alimony to continue even after the paying spouse dies.
- Child Support: The courts in California have their own guidelines to determine how much child support will be paid, and it is uncommon for the court to deviate from the guidelines. The child support payments are based on the couple’s income and the amount of time the child spends in the care of each parent. It may also be required that one parent provide health insurance for the child. In California, child support payments continue until the child graduates from high school or reaches the age 19. If the child is disabled and unable to live independently then the payments can be extended. The Department of Child Support Services enforces the court orders and may take support payments directly via garnishments. If payments are not received, then all enforcement mechanisms available for the breach of a court order are available to ensure continued payment. Child support payments can be amended after the initial order but the requesting party must demonstrate to the court that there has been a material change in circumstances of either the parents’ income, the child’s needs, or the time-share of the child.
- Child Custody: In California, courts generally allow the divorced couple to establish their own parenting agreement, but if they are unable to do so, the courts will make the decision based on the best interests of the child. A divorce lawyer can help you with the child custody process. Both parents will be considered by the courts and they will review the health, safety, and welfare of the child. The amount of contact with both parents and any other relevant factors will also be used to determine a suitable division. As above, to modify a custody order the court must see that there have been significant changes which are in the child’s best interest in order for them to alter the current order. Parents can request to move states and in such a circumstance the court will consider the best interests of the child. Both parents will be expected to provide evidence and demonstrate how the move might negatively or positively impact the child. If your ex-partner is planning to move away with your child and you would like to know all of the legal options available to you, please contact Fischer & Van Thiel and we will be able to assist you with your case.
Contact an Experienced Divorce Lawyer in Oceanside
As you can see, there is a lot of information to consider before filing a petition for divorce. At the Oceanside family law attorneys of Fischer & Van Thiel, we have the experience and qualifications necessary to help you with your divorce application and we can answer any remaining questions that you may have. To arrange a consultation with one of our divorce attorneys please contact us today by calling 760-904-3094.