Family Law
Filing Divorce in California
Under California law, a married couple is considered to be part of what is called a “marital community.” The marital community ends when a husband or wife (or both together, although it does not have to be a mutual decision) decides that the marriage is at an end, and communicates that decision to their partner. Once the decision is made to end the marriage, that decision needs to be acted upon by filing a divorce case in court. In California, an application for divorce filed with the court is called a “Petition for Dissolution.”
Basic procedure
A divorce case is initiated when one side files a Petition for Dissolution in the Family Law division of the Superior Court of the county where one or both of the parties has been living for at least three months before filing. (In addition, one or both of the parties must have been a resident of California for at least six months). The clerk of the court will issue a “Summons,” and the filed Petition and Summons then have to be served on the other party, who is called the “Respondent” in the case.
The Respondent then has thirty days to file a Response to the Petition. If the Respondent fails to file a Response, the Petitioner can request that the court enter Respondent’s “default,” and proceed ahead with the case. In many cases, when the couple actually agrees on what the terms of the divorce should be, they enter into a “Marital Settlement Agreement,” Petitioner asks for Respondent’s default to be entered (to save the additional filing fee), and then asks the court to include the settlement agreement as part of the divorce judgment.
How the case proceeds depends upon such factors as whether the couple has children, whether either side is seeking support from the other after the marriage ends, how complicated the couples’ financial situation is, and how much dispute there is between the couple over the terms of the divorce.
What to expect In Court
As a general matter, the court in a divorce case in California is not concerned with questions of infidelity, whose “fault” the divorce is, or how the marital relationship broke down. Instead, the court’s focus is on separating the marital community’s common ties and restoring them to the status of single people, rather than a married couple.
A divorce case is therefore most likely to involve two or three broad topics, which include 1) financial affairs, 2) children (if any), and 3) support. Under California law, in a divorce case, both sides are required disclose all of their financial assets and liabilities to the other side. If the couple cannot agree on a fair division of the community assets and debts (that is, what was earned or incurred during the marriage), then the court has the task of deciding what the community assets and debts are and dividing them equally between the parties.
If one side or the other is not employed or is making less than the other side, they can also seek support from the other side for a period of time after the marriage ends. If the couple has children together, the divorce case will also contain terms dealing with who has custody of the children, what visitation rights the non-custodial side will have, and how much child support must be paid.
If you have a Minor Child
If a couple have children together, and the children are still under the age of eighteen, then the court in a divorce case must assign both physical and legal custody of the children. Custody can be either joint (fifty-fifty between both sides), or assigned to one side or the other, generally with the non-custodial side being given “visitation” rights with the children.
In addition, the issue of child support must be worked out. Children have a right to be supported by their parents after a divorce, until they reach eighteen (or graduate from high school). California law establishes a “guideline” formula that takes into account custody and visitation arrangements and both sides’ financial details, to arrive at an amount that one parent must pay to the other every month for “child support.”
If you Have a Dispute over Property
If a couple cannot agree as to the amount of property, the existence of a piece of property (i.e. one side believes the other is concealing assets), the characterization of property (i.e. whether a piece of property is community or separate), or the valuation of property, then the court will have to make a decision resolving the issue.
Disputes over property can become costly, as they can involve extended discovery procedures such as subpoenaing bank and business records, holding oral depositions, and retaining forensic accountants and valuation experts to testify regarding the disputed assets. These procedures may be unavoidable, however, if the value of the assets is significant and neither side can accept the other side’s position, nor reach a compromise to settle the issue.
What Should You Expect for Spousal Support?
In a California divorce case, there are two types of support, child support and spousal support. Generally speaking, spousal support is available when one of the sides in the divorce makes less money than the other side; its purpose is to roughly equalize the standard of living of the two parties after the divorce.
Unlike child support, which is mandatory, the award of spousal support is at the discretion of the judge in the case. The judge’s decision will depend on various factors such as the length of the marriage, the income of each side post-separation, and the relative earning ability of each side. Spousal support is not awarded for an unending period of time, except sometimes in the case of very long term marriages. Often, for marriages that have lasted less than ten years, the court will award spousal support for a period of time that is half the length of the marriage (e.g. two years of support for a four year marriage).
Domestic Violence and Temporary Restraining Orders
Domestic violence is a crime in California, and it is taken very seriously by the police and by the court. Any violent act by one party against the other, or against the couple’s children, can lead to that party’s arrest and prosecution.
If a party is a victim of domestic violence from their partner, they can apply to the court for a temporary restraining order. The judge can grant a temporary order based on the victim’s detailed statement of the violent incident(s), and the order will require the violent party to refrain from violent or threatening acts and to stay away from the victim.
The court will also set a hearing date within approximately three weeks to give the other party the opportunity to respond, and to decide whether the order will become permanent. A temporary restraining order can be obtained either as part of filing a divorce case, or independently, without also filing a divorce case. The temporary order becomes effective as soon as it is served on the party that it restrains.
If you are considering divorce or you are in divorce proceedings and you need legal representation, please consult with us.