Divorce, also known as dissolution, is the legal process to terminate a marriage. The process begins when either you or your spouse decides to terminate the marital union and the legal duties and responsibilities of marriage. You need to consider issues you may encounter by filing as a petitioner or as respondent – some client may want to initiated a divorce proceeding while other may find it advantageous to respond to a divorce petition.
Divorce Residency Requirements
Filing for divorce in the State of California requires that one of the spouse must have resided in the state for at least six months prior to the date of filing, and that the filing spouse must have resided in the county where they are filing for at least three months prior to the date of filing. In short, you must have been a resident of the county in which you are filing for at least 3 months prior to the date of filing and a California resident for at least 6 months prior to the date of filing. If you do not meet residency requirements, you can file for a legal separate which can later be converted to a divorce proceeding.
Marriage Contracts Affecting Divorce
Couples often consider prenuptial and postnuptial agreements; the difference being that one is entered into before marriage while the other is entered into after marriage. Both agreements are contracts that characterize the parties’ assets, distribution of those assets, and/or other specific interests. Both documents require specific language and “disclaimers” to be enforceable. What is often at stake is community property or potential community interests which must be disclosed and any characterization to designate property as one person’s separate property agreed to.
The legal relationship that parents have with their child can be established by a court during a divorce or agreed to by the parents. Custody agreements and orders include establishing legal custody – the right of the child to make decisions regarding the child’s care and development; and, physical custody – the time a parent spends with a child. Parents can reach an agreement regarding custody without court intervention. This agreement can then be entered as a court order. Otherwise, parents will attend mediation and receive recommendations about custody and parenting time.
The ongoing and periodic payment made by a parent for the financial benefit of a child following a divorce. Child support can be requested by a parent or by the State of California. Child support is determined by each parent’s parenting time and each parent’s income. Child support can be requested by either parent at any time and child support cannot be “waived.” Alternately, if your child is receiving assistance from a county or the State of California, both parents can be requested to pay child support to compensate for the financial aid provided.
Also known as alimony, is a legal obligation for one spouse to provide financial support to the other spouse during separation and after divorce. Spousal support that is agreed to or awarded after the date of separation and until a divorce is finalized is called temporary spousal support. Spousal support that is agreed to or awarded after a divorce is finalized is call permanent spousal support. Spousal support is available to either a husband or wife and is awarded to help one spouse attain the marital standard of living.
All property (whether it be an asset or debt) acquired during a marriage is characterized as community property. All property acquired before marriage or after to date of separation; by gift; or, from an inheritance is characterized as separate property. All community property is to be divided while all separate property is awarded to the acquiring spouse. The division of property requires that all property be first characterized after which reimbursements and credits must be considered.
Domestic Violence Restraining Orders & Civil Harassment Orders
A domestic violence restraining order is a court order restraining a party from abusing another person who they share a close relationship. Abuse includes physical violence, verbal attacks, emotional distress, economic restrictions and sexual attacks or molestation. Civil harassment are requests made by those who are not sharing a close relationship. Abuse is defined as: intentionally or recklessly caused or attempted to cause bodily injury or sexual assault; placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or, engaging in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property, or disturbing the peace of another.
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