Karimian Law Group | California Divorce – The Basics
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California Divorce – The Basics

Filing for Divorce, aka “Marital Dissolution”

In the state of California, there are only two legal reasons for ending a marriage: [1] “Irreconcilable Differences” or [2] incurable insanity. Irreconcilable differences means that no amount of marital counseling will save the marriage. California is a “no fault” divorce state, meaning that you do not have to give the court any other reason for ending your marriage, as opposed to other states which require proof of adultery, etc.

To file for a California divorce, you must have lived in California for 6 months and for 3 months in the county where you intend to file the divorce paperwork. A “Petition” is filed with the county clerk’s office, along with a Summons.

 

Legal Separation:

In situations where a party wants to obtain orders for child custody, visitation, and/or other issues but has not lived in the same county for the past 3 months or in California for the past 6 months to meet  the time requirements for filing for divorce, that party can file for Legal Separation and amend his or her Petition to a divorce after 6 months have passed.

Legal Separation is also appropriate for some parties for religious and/or insurance coverage issues. Medical insurance companies who had previously insured a spouse under the other spouse’s medical insurance during the marriage generally terminates such coverage options when a divorce is finalized. Therefore, for spouses who would have difficulty in obtaining their own medical insurance coverage after termination of their marriage due to pre-existing medical conditions, a legal separation can make sense because it enables such medical insurance coverage to continue. The court can make orders relating to child custody, visitation, child and spousal support and divide property in a legal separation case, but the parties otherwise remain married to each other.

Annulment:

An annulment, if granted by the court, means the marriage never existed. An annulment is appropriate where one of the parties married when he or she was a minor without parental consent, where fraud or deceit was involved (that, if known at the time of marriage, the other party would have never entered into the marriage), etc. [INSERT ALL LEGAL BASIS FOR ANNULMENT].

II. Seeking Temporary Court Orders for Child Custody, Visitation, Child Support, Spousal Support and Other Issues.

Mediation:

Whenever an Order  to Show Cause (OSC) hearing addressing child custody and visitation issues are files, the Court will order that the parties attend mediation at no cost through the court’s mediation department prior to the Order to Show Cause hearing date. Although the law requires that the parents participate in mediation, there is no requirement that they reach an agreement.

Mediation is intended to reduce conflict between the parties by encouraging cooperation and assisting parents in creating their own parenting plan that meets the needs of their children with their best interests in mind.

The court mediators are generally trained professional who have at least a Master’s Degree and have extensive experience in psychology and marital/family counseling, and are trained in conflict resolution.

In mediation, the mediator meets with the parties either together and/or individually. If there had been domestic violence between the parties, the mediation is usually held in separate sessions with each parent for safety reasons and to avoid any appearance of intimidation.

The mediator works to assist the parties in focusing on parenting arrangements that are in the best interests of their children and can put together a partial or full parenting agreement schedule (including legal custody, parenting plans, holiday and vacation schedules, transportation or other issues) depending on what the parties are able to agree upon in mediation.

Parents can sometimes resolve all of their parenting issues in mediation, sometimes only a partial agreement can be reached, and otherwise no agreement is reached. Mediators only draft agreements that are acceptable to both parties. If the mediation agreement is still agreeable to both parties at the time of the Orders to Show Cause hearing, it can be adopted and incorporated into a court order.

Only the parties attend mediation, with no attorney’s, spouses or other family members present, although a second session can sometimes be requested so that the mediator can speak with the parties’ children, if it is believed that such feedback would be helpful in assisting the parties to develop parenting plans.

Stipulation (Agreement) Of the Parties:

When Parties are able to work together in reaching agreements for temporary orders or a final settlement of their entire marital dissolution case, a “Stipulation & Order” for temporary orders or a “Marital Settlement Agreement” can be drafted by the attorney outlining the terms of such agreement which both parties and their respective counsel will sign and when filed with the Court, they become official orders of the Court.

Trial:

If the spouses ultimately are unable to reach a more “permanent” agreement on all custody, visitation and related issues, the parties will need to request that a trial date be set to have the judge assigned to the case decide the issues. There are no juries in family law court, so such issues are generally decided by the Judge or a Commissioner of the Family Law Court.

Judgement:

California has a six-month “cooling off” period prior to entry of Judgment in a marital dissolution case, meaning that a Judgment terminating the marriage cannot be entered until at least 6 months after the date the other spouse was served with the Petition for marital dissolution has passed. However, nothing happens automatically when the 6 month time period is reached, and the Entry of Judgment requires either a formal Marital Settlement Agreement be entered into by the parties as part of a Judgment package filed with the court, or otherwise by court orders made at trial.

[i] Bifurcation of Marital Status:

Until a judgment is entered in your divorce case, you cannot legally remarry. However, in cases where the issues are heavily contested, it is possible to seek a “Bifurcation of Marital Status” either by agreement or court order whereby the Court separates the issue of marital status from the rest of the case, restores the parties to the status of single persons, and reserves the remaining issues for further determination. Bifurcation of marital status enables the parties to remarry while they continue to negotiate and litigate the remaining issues of their divorce.

III. Failing to Respond to the Divorce Papers (default)

If a spouse has been served with divorce papers, that spouse must consider the divorce to be a real lawsuit, i.e. that person is being sued in court for divorce. The same requirements for a regular lawsuit apply, meaning that if a spouse does not file a Response to the divorce papers within 30 days of being served with the Summons and Petition, the person filing for divorce can file default papers requesting that the court grant the orders requested in the Petition.

X. What About the Kids? (Child Custody & Visitation)

There are two types of child custody, Legal Custody and Physical Custody. Legal Custody concerns who is entitled to make the decisions concerning the health, education and welfare of the parties’ children. Physical Custody involves who has the children and on what days and times.

*Sole Legal Custody means that one parent has the right to make the decisions concerning thhe health, education, and welfare of the children.

*Joint Legal Custody means that both parents must confer and share the responsibility and right to make the decisions concerning the health, education, and welfare of the children.

*Sole Physical Custody means that the children live with one parent with the other party having regular visitation.

*Joint Physical Custody means that the children spend a substantial amount of time living with both parents, but does not mean that there is a pure 50% split of parental time between the parents.

V. So Who Gets the Pots and Pans (DIVISION OF PROPERTY):

Community Property:

California is a “Community Property” state, meaning that each spouse owns one-half interest in all real and personal property and debts acquired during the marriage, regardless of whether one or both parties were gainfully employed during the marriage or how title to the property or debt is held. Such assets can include pensions and other retirement plans, and investments. Such debts can include credit card bills.

There are exceptions to the rule of community property, such as gifts or inheritances received during the marriage that were not comingled (intermixed) with community property (like joint bank accounts) during the marriage. Gifts and inheritances are generally considered the separate property of the spouse that received them. Moreover, student loans are generally considered separate property debt of the party who incurred them, because they keep the benefit of their education paid for by such loans even after the marriage ends. Separate property is also anything you owned before you got married or that you earned or received after your date of separation.

In dividing community property, it is the intent of California law to divide up the property in such a way so that one party takes an asset of one value, the other party takes another asset of equal  value, so that in the end, the value of the divided assets have been equalized between the parties. After all, simply because both parties own one-half of the dining room table does not mean that it makes any sense to grab a chainsaw and the table in half!

Under some circumstances where the assets have been divided up as equally as possible but the division is still one-sided, an “Equalization Payment” may need to be made to equalize the value of the property divided.

Separate Property:

Separate Property is assets and debts acquired or incurred prior to the date of marriage, or after the parties have separated, as well as inheritances received before or even during the marriage, and gifts to particular spouse. Separate property can include the rents or profits generated from such separate property. Separate property is not divided by the Court as part of the marital property.

Where separate property has been commingled with community property assets, a spouse claiming a separate property interest has the legal burden of tracing the source of such assets, which can be very complicated. In certain situations, a forensic accountant may need to be appointed in order to address and resolve complex tracing issues.

VI. When is My Divorce Final?

A California divorce cannot be ordered by the Court until at least 6 months after the other spouse was served with the initial Summons and Petition, i.e. a “cooling off” period that cannot be shortened or waived. Moreover, nothing will happen after those 6 months in ending your marriage unless you and your spouse enter into a written judgment agreement or otherwise take the divorce to trial. In other words, a divorce judgment can only happen with either an agreed-upon judgment or going to trial. Until that time, neither party can legally marry.

In situations where the parties have not resolved all issues or one or both parties seek to be divorced in order to remarry, a party can seek a “bifurcation” of marital status, wherein the court terminates your status as a married couple but reserves jurisdiction over all other issues of the marriage until further agreement can be reached or the case goes to trial.

VII. Simple Divorces (“SUMMARY DISSOLUTION”)

For couples who have been married for less than 5 years, have no children together, will not seek spousal support from each other, have very little property or debts together, and can mutually agree on how to divide their property and debts, a California “summary dissolution” is a simplified alternate to a regular divorce. Such couples can complete and file special forms together with the court and will not need a court hearing to finalize their divorce.

Legal Requirements:

  1. The parties have been married for 5 years or less.
  2. The parties have no children from their relationship
  3. Neither party owns a home or other real estate property.
  4. The value of all community property totals less than $25,000.
  5. The combined total debt of the parties is $5,000 or less.
  6. The parties mutually agree to waive spousal support from the other.

 

 

 

 

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