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Wednesday, November 22, 2017

California Divorce Overview

by Editor (editor), , November 28, 2016

California is a pure no-fault state, so irreconcilable differences is the only ground for divorce, other than legal and incurable insanity.

Regardless of the names on the petitions, all California marriage dissolution actions go through the family courts. California is a pure no-fault state, so irreconcilable differences is the only ground for divorce, other than legal and incurable insanity.

No-fault divorces require no evidence of adultery, abandonment, cruel treatment, or other fault. Basically, the petitioners do not have to say why they want divorces. Even if the respondents claim that the couple's differences are not necessarily irreconcilable, as the old saying goes, "it takes two to tango," and if one spouse wants out, the marriage relationship has obviously broken down.

There is a minimum six-month waiting period in no-fault divorces, so the divorce cannot be finalized until six months after the petition is filed. In nearly all cases, unless the respondent cannot be located or immediately agrees to all the petitioner's terms, the marriage dissolution will probably last longer than six months anyway. There is another technical requirement as well: at least one party, either the petitioner or respondent, must have been a resident of California for at least six months and a resident of the same county for at least three months.

According to Hossein Berenji, a divorce lawyer in Los Angeles, "to bypass the waiting period, some couples pursue legal separation." There are other reasons as well, such as a religious objection to divorce, a hope for reconciliation, or a need to remain on a group health insurance plan. Legal separation does everything that divorce does except dissolve the marriage. Sometimes, separation agreements serve as ground rules until the spouses reconcile; other times, separation agreements lay the foundation for future divorce orders.

Nearly all divorcing spouses inquire about costs. Truth be told, anyone who can give a firm dollar figure is probably either inexperienced in family law, at least in that county, or is not being forthcoming. Every case is different, and while some divorces can be concluded quickly, others have significant issues to work through.

Child Support and Child Custody

California is an income shares state which determines a total child support obligation based on the financial resources the children would have had if their parents remained married. Some factors include:

  • Both parents' income,
  • Each party's parenting time,
  • Any stepchildren,
  • The number of children, and
  • Child-related expenses, such as daycare costs.
  • The resulting guideline amount is presumptively reasonable, and the court takes that total obligation and divides it proportionally between the parents based on their income.

    California is also a joint custody state that, in most cases, equally divides both physical custody (where the children reside) and legal custody (which parent makes important decisions concerning the children). If the parents live relatively close together, 2-2-3 schedules are very common. For example, the children would spend Monday and Tuesday with Mother, Wednesday and Thursday with Father, Friday, Saturday, and Sunday with Mother, and then the parents switch positions. If the parents live a little further apart, empty-nest parenting time arrangements usually work well. The children stay in one place, while Mother and Father shuttle back and forth between the children's residence and another residence, usually on an every-other-week basis.

    To avoid the dreaded 1-1 tie when it comes to child-related decisions, some parents allocate responsibility instead of decision-making, e.g. Father has the final say on what doctor the children see and Mother has the final say on where they go to school, and so on. Specific language int he divorce order, such as "the children will see Dr. So-and-So" or "the children will always attend public school," may also suffice in some cases. Regardless of what the orders say or don't say, differences almost inevitably arise, and either mediation and/or modification may be necessary.

    Property Division and Spousal Support

    California is a community property state, so all marital property is divided equally. It is not always easy to distinguish marital property from separate property, especially in longer marriages; for example, Husband might make the payments on a car he bought before the marriage (separate property) with money from his paycheck (community property). When property becomes commingled like this, the contributing estate is usually entitled to reimbursement. Furthermore, if a party wants to challenge the community property presumption, that party must prove the property is separate, by clear and convincing evidence.

    The judge may award temporary alimony, "permanent" alimony, which is really more like long-term alimony, or both. Both these types of spousal support serve different purposes.

  • Temporary alimony helps obligee spouses meet litigation-related costs, such as attorneys' fees, pay interim living expenses while they look for work, and meet one-time divorce-related costs, like daycare and rental deposits. To determine the amount, some courts use a set formula and some simply compare the obligee spouse's need with the obligor spouse's ability to pay. Temporary alimony payments automatically end when the divorces are finalized.
  • Permanent alimony equalizes the standard of living between the ex-spouses and helps obligee spouses become economically self-sufficient by providing money for school tuition and other costs. The amount and duration of payments are subjective, based on a number of factors.
  • Alimony payments can usually be modified based on changed financial circumstances.

    Almost all divorces involve complicated legal and financial issues. If you find yourself overwhelmed, speak with an attorney in your jurisdiction.



    About the Writer

    Editor is an editor for BrooWaha. For more information, visit the writer's website.
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