SAN DIEGO DIVORCE LAWYERS
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Divorce

How does divorce in California work?

It’s important to remember that California is a No-Fault Divorce state. Simply put, this means that – even in cases in which adultery or some other cause can be proven – neither party is actually required to prove the other spouse did anything wrong.

In other words, a married person who wants to end the marriage can do so, even if the other spouse wants the marriage to continue.

The Family Court judge will ultimately make an equitable determination over who gets what based upon the merits of the case, not who files first. 

What is the process for divorce in California?

The process itself is fairly straightforward, but it’s important to speak with a lawyer beforehand so that you can plan your case ahead of time.

Also, at least one spouse must have had California residency for at least six (6) months (180 days) before filing the divorce petition. You will need to have lived in the same county where the divorce is filed for three months prior.

  1. The spouse filing first fills out the necessary divorce forms and has the other spouse served. (There are actually quite a few advantages to filing first; we’ll share those below.)
  2. Once served, the other spouse has thirty (30) days to respond.
  3. At this point, either spouse can request temporary Court orders related to issues including, but not limited to, child support, custody, alimony and/or restraining orders.
  4. Both spouses then begin the “discovery” process; one of the most time-consuming aspects of the entire process but also one of its most critical parts.The goal of the discovery process is to collect evidence to support the claims you’re making in your divorce. It also gives you a peek into the playbook of your spouse so that you and your lawyer will be in a better position to put together a solid defense.

Typically, the type of information exchanged during discovery revolves around economic, financial and personal situations.

  1. At this point, you and your spouse can agree on a settlement to end the marriage and a Marital Settlement Agreement will be prepared for both of you to sign. This is an uncontested divorce.
  2. If you and your spouse cannot come to an agreement, your case will proceed to court as a contested divorce.
  3. When the court case is over, a Judgment of Dissolution of Marriage is filed and your attorney will receive the Notice of Entry of Judgment.

What are divorce laws in California for military members?

A military divorce may differ from a civilian divorce in several important aspects.

There are three things that concern most people seeking military divorces:

  1. Child custody
    If you have children together, it may be of primary importance to you to ensure that they do not suffer from the divorce but that your rights to see them are uninterrupted. It is important to remember that non-military spouses are often under- or unemployed due to frequent moves, so child support is often a given in a military divorce. Custody for those who deploy often is usually not an option, so it is important to have an alternative for custody, such as your parents or a sibling, if your former spouse is unable or unwilling to take the children, as well.
  2. Spousal support
    If your spouse gave up a career or put off going to school in order for you to deploy or attend training, it is likely that you will have to pay spousal support to allow him/her to finish their own education or job training. However, this amount can be adjusted once they have employment. It is very important to have an attorney who works with you on this issue and protects you from excessive requests for spousal support.
  3. Military pension
    If you plan to retire from the military, is it important to think about how you will divide your military pension or if you will offer your spouse cash in lieu of a portion of your pension. This may seem like a problem for the future, but spouses can take up to half of your pension for life in some cases, so it is critical that you protect yourself.

How are divorce papers served in California?

After you’ve filed for divorce, the next step – mandated by law – is to make sure your spouse is aware of your intentions. It’s known as the process of “being served.” How you do it, though, can set the tone for how the rest of your divorce process plays out.

If you’re filing for divorce, it is your responsibility to make sure your spouse is properly served. The papers must be given to directly to your spouse and should be served by a “disinterested person” who is not a party in the case and will not be affected in any way by its outcome.

If you choose to mail the divorce papers to your spouse, you will be required to send them via certified mail, meaning that the U.S. Postal Service will provide you with a slip as proof of the letter being mailed and a return receipt proving that your spouse received the package.

Stay To The High Road
As tempting as it may be, nothing can be gained by having your spouse served at their place of work or in public. The only time you should consider doing this is when your spouse is nowhere else to be found. If your spouse has you served at work or in public – as obnoxious as it may be – you’ll do well to keep your calm.

Well-known instances of less-than-ideal places to be served include:

  • Frank Sinatra serving Mia Farrow with divorce papers on the set of the movie “Rosemary’s Baby.” The entire cast and crew were there to witness Farrow fall to her knees sobbing.
  • Danielle Staub of “Real Housewives of New Jersey” fame was served while she walked the red carpet for a Halloween movie screening.
  • Baseball great Satchel Paige received his divorce papers as he stepped onto Wrigley Field for a game.

How long does it take to get divorced in California?

For an uncontested divorce (one in which you and your spouse have no disagreements), it will take a minimum of six (6) months for the divorce to be finalized.

A contested divorce (one in which you and your spouse cannot come to an agreement) can take a while longer because of legal requirements for such as issues like custody, child and spousal support, division of communal property, etc.

The overriding issue that can lead to a quicker finalization of your divorce is cooperation. 

Are there advantages to Being the First to File for Divorce?

Even though the judge’s decision is not based upon who files first, being the one to do so can position you for a series of advantageous moves throughout the divorce process.

  • Selection of jurisdiction.
    Because you as the petitioner can choose to file in the county where you live, the odds are in your favor that the case will be heard on your turf. That’s a huge advantage when you consider the alternative of having to travel long distances to meet with your lawyer and to present evidence.
  • Your side will be heard first.
    Typically, a judge will read case paperwork in the order that it was filed, which means he or she will read your side first.

Also, your lawyer will probably be able to present your side first to the judge in a calm and reasonable matter without needing to be antagonistic to the other spouse.

It also means that your spouse’s defense will only be presented after your case has been established, and your lawyer will have the right to rebut the presentation made by your spouse’s lawyer.

  • Protect your assets and properties.
    There are numerous horror stories online of men whose soon-to-be exes emptied their bank accounts and sold off assets before the husband knew what hit him.

This is where filing first can protect your valuables. Once you file a petition for divorce, an Automatic Temporary Restraining Order (ATRO) kicks in.

The ATRO immediately locks the assets of the couple and prevents either spouse from transferring, liquidating or hiding them.

  • Preserving status quo of children’s routine.
    If you and your spouse have children, it’s crucial to remember that the petitioner can also file a motion that will preserve the status quo of where the children reside, their daily routine and time with parents.
  • Ability to halt the proceedings.
    Only the petitioner has the legal right to stop the divorce process by withdrawing the petition.

How are assets divided during divorce in California?

Including California, there are 9 community property states – Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

In these states, estates are usually divided equally. There are some differences, though, from state to state. For example, while California divides debt and property equally, Texas Court will divide debts and assets equitably.

The prevailing thought among community property states is that assets and debts acquired during a marriage belong to both spouses.

Separate Property

On the other hand, separate property belongs only to one spouse. While there are some differences from state to state in exactly how separate property is treated, the general idea is the same.

Common examples of separate property include but are not limited to:

  • Property owned by one spouse before the marriage;
  • Inheritances received before or during marriage;
  • Gifts received by a spouse before or during marriage;
  • Property acquired by a spouse by use of separate property assets with the intent to keep it separate; and
  • Property that became the possession of one spouse – in their name – and never used to benefit the other spouse or the marriage itself.

Who keeps the house in a divorce in California?

For many couples facing divorce, the family home is the largest asset of the marriage.

  • If the Court decides to award the house to one spouse, they will typically do so with an “equalizing payment” condition. This means that the Court will order the spouse with the house to reimburse the other for their fair share of the home.

When the Court does this, they are required to consider:

(a)        Financial positions of both spouses;

(b)        Emotional attachments to the house; and

(c)        What the property is used for.

  • The Court can force the sale of the house.
    To do this, you file paperwork with the Court to ask that the judge orders the home to be sold. When this is done, the profits of the sale will be divided equally or in a way to make sure that the division is fair
  • You can buy out your spouse’s share of the house.
    If you want to stay in the house, the first thing you need to consider is whether or not you can actually afford to buy out your spouse’s share. As the buyer, you’ll need to come up with 50% of the equity in the house (the value minus debts on the home).

Once you’ve determined that you’re able to afford it:

(1)       You and your spouse need to determine a buyout value that is mutually acceptable. If you’re having trouble coming up with a value, you can hire a professional appraiser for the current fair market value of the home.

(2)       If you do not have the cash on-hand to go ahead and buy out your spouse, think of what “community assets” you can trade off. For example, if you and your spouse have $10,000 in community savings, you can transfer your $5,000 interest in the savings to your spouse.

 

Who pays for divorce in California?

California Family Law is fairly straight forward with guidelines and requirements that must be met in order to determine who pay what.

  • Need-Based Fee Award
    California Family Code 2030 – 2032 states that “the Court shall ensure that each party has access to legal representation by ordering – if necessary – one party to pay or contribute to the other party’s attorney fees based on income and needs assessments.”

In other words, this means that the Court will try to create an equal playing field so that one spouse will not have a significant advantage over the other. In doing this, the Court will take a look at the incomes of both spouses and the assets available to them.

Known as a “request for order,” the motion to receive help with legal fees will also require a demonstration of need and the specific work performed by the spouse’s lawyer up to that point.

  • Bad Behavior Can Cost You           
    Through Family Code 271, the Court can mandate one spouse pay for or contribute to the other’s attorney fees because of bad behavior.

The exact wording states in part that “the Court may base an award of attorney’s   fees and costs on the extent to which the conduct of each party or attorney frustrates the policy of the law.”

For example, if one spouse is being particularly difficult in trying to finalize the divorce or if they’re proven to be simply trying to drive up the legal costs of the other spouse, the Court can punish the offending party by requiring them to cover the fees.

Because the overriding goal of the statute is for fairness to both parties, the Court will look at a host of things – including the offending spouse’s financial situation to see if the amount would lead to an unfair hardship – before making such a decision. 

What is default divorce in California?

Simply put, a default divorce occurs when one spouse does not respond to a divorce petition within the allotted thirty (30) day time period.

For the spouse or partner who filed the divorce petition, the case will most likely proceed and end with the conditions (custody, alimony, property division, etc.) they ask for in the petition.

After the 30 days have passed, the petitioner will need to file a series of forms to complete the divorce. The forms cover topics including:

  • Child custody;
  • Supervised visitation;
  • Holiday schedule;
  • Child support information;
  • Alimony;
  • Pension benefits;
  • Property and asset division; and
  • Income and expense declaration.

You can download these forms from directly from the California Court site.

While default is a relatively easy and clean way to end your case if you have few shared assets and no children, you may actually fare better if your lawyer has the opportunity to cross-examine your spouse or partner under oath.

Default With Agreement Divorce

If you and your spouse/partner are working towards an agreement, you can choose to pursue either a True Default or Default With Agreement divorce.

While a Default With Agreement divorce is still a Default case, the difference is that your spouse/partner will be participating with you.

The benefits of a Default With Agreement divorce is that they’re fairly easy to be approved by the Court since both parties are involved; there’s no public record of property division; equal division of property is not automatic.