There are times that you may be able to conclude your California divorce without a court hearing or even without hiring an attorney.
The Law Offices of Edward Misleh, APC is a law firm that practices family law and clients in Northern California with services they need and deserve when addressing all aspects of divorce. Call now our Lawyer Hotline. Call now 321-951-9164.
Starting Your Divorce
You start your divorce in California by filing a petition stating certain facts on a petition for dissolution. The divorce petition will contain your date of marriage, date of separation, the number of years married from marriage to separation, the number of children of the marriage, and the age and birth date of each minor child of the marriage.
When starting your divorce, you will also be addressing child custody, child support, spousal support (alimony), community property, separate property, and attorney’s fees.
The divorce process commences in court when you file the petition of dissolution and summons at the courthouse and serve these papers on your spouse. Getting a divorce and be difficult, especially if there are custody property issues.
Is there an “easy divorce?” Depends on if you have a contested divorce or uncontested divorce. California does have process called summary dissolution, which some people refer to as a “quick divorce,” that is much simpler and a less complicated method to obtaining a divorce. You may be eligible for this process if:
- You and your spouse have agreed in writing to a division of your assets and debts.
- You have been married for five years or less.
- You have no children from the relationship.
- Neither of you own a home or other real estate.
- The value of all community property amounts to less than $25,000, excluding automobiles.
- The value of either party’s separate property amounts to less than $25,000, excluding automobiles.
- Your combined debts do not exceed $4,000, except for an auto loan.
- Neither spouse is requesting spousal support.
To file for divorce in California, you must meet two residency requirements. The first is that at least one spouse must be a resident of the state for six months or 180 days prior to the date of filing a petition for divorce. The second is that one spouse must be a resident of the county in which you are filing for divorce at least three months prior to the date of filing.
Common Law Marriage
There’s no common law marriage in California and there is no such thing as a California common law marriage. To be legally married in California, you must have obtained a marriage license, and entered into a legal relationship. You cannot get divorced unless you were legally married. California does acknowledge couples who are legally married in other jurisdictions (states or countries).
Although you may not have a common law marriage you may still be able to assert rights to property and spousal support (palimony) if you were in a significant relationship and made commitments to one another. This is called a “Marvin Action” and is the basis for a palimony action or division of property acquired during the relationship.
Another consideration for those who are not legally married is being designated as a “putative spouse.” One partner may also obtain alimony and obtain their interest in property if they are determined to be a putative spouse.
An alternate to a divorce action is a legal separation. You remain “married” but are no longer part of a “community.” You cannot get remarried. This is often done for religious, insurance, or tax purposes. A court will divide your property and issue orders relating to child custody, visitation, child support and spousal support, and, if necessary, a restraining order. There is no residency requirement to file for legal separation. You can get a legal separation without having lived in California for six months or your county for three months before filing.
What is the difference between an annulment and a divorce. An annulment is a court ruling that your marriage never existed. You may be able to get an annulment if, when you were married when you were a minor without the consent of your parents or guardian, or if there was fraud or deceit. An annulment returns you to single status as if the marriage never existed.
Grounds for Divorce
The most common basis for a divorce, in California, is “irreconcilable differences” that have caused the marriage to break down. California is a no-fault state, which means that you cannot base your divorce on one spouse’s actions unless your spouse abandoned the family, misused community assets, or was violent. When we say “grounds for divorce” we are really stating the reason why one spouse wants to get divorced.
California is a community property state which means that all of the marital assets and debts acquired during your marriage are shared equally between the two of you at divorce. That includes income of all kinds, savings from income, property, and anything else that you own. However, it doesn’t include either spouse’s separate property, which includes inheritances, gifts, and property that one spouse owned before the marriage.
All community property is divided equally unless you and your spouse agree to an unequal division. Community property is all property that you and your spouse acquired, through labor or skill, during the marriage. This includes interests in pension, profit-sharing benefits, stock options, other retirement benefits, and any business owned by one or both of you. Each spouse owns half of the community property. This is true even if the property is in only one spouse’s name.
In a California divorce, both spouses are responsible for community debts, debts incurred during the marriage. The only exception being, student loans. Division of debts can be done by an agreement entered into by you and your spouse or, if you and your spouse cannot agree, by the court.
Separate property is property acquired before your marriage (including rents or profits received from these items); property received after the date of your separation with your separate earnings; inheritances that were received either before or during the marriage; and, gifts to you alone, not you and your spouse. Separate property is not divided and belongs solely to the spouse who owns the property. Problems can arise when separate property has been mixed with community property. When this occurs, the community acquires an interest in the separate property. However, you may be entitled to receive your separate property back even if it has been mixed. Debts incurred before your marriage or after your date of separation are considered your separate property debts.
California courts begin with a presumption that it’s best for a child to have frequent and continuing contact with both parents after a divorce – joint custody. However, the details of the parenting plan will be determined by the children’s best interests. If parents can agree on a parenting plan, the court will usually approve it. If you and the other parent are unable to agree on custody or visitation, you will be required to appear in court for a judge to decide on a parenting plan. Before any hearing or trial involving child custody or visitation, both parents are required to meet with a trained counselor who will try to help you reach an agreement on custody and a parenting plan. In some counties, counselors are able to submit a recommendation to the judge even if you and your spouse did not reach an agreement. In other counties, meetings with the counselors are entirely confidential and the counselor can only report agreements reached by the parents.
Depending on the nature of the custody dispute, the judge may order a psychological evaluation of one or both parents, and may appoint an attorney to represent the children.
Best Interests of the Child
The judge may give custody to one or both parents, or, in some cases, to another adult based on the best interests of the child. Considerations include the child’s health, safety and welfare, as well as any history of abuse by one parent. For custody to be awarded to someone other than a parent, however, the judge would have to believe that giving custody to either parent would be detrimental or harmful to the children.
Types of Child Custody
- Joint legal custody means that both parents share the right and responsibility to make important decisions about their children’s health, education and welfare.
- Sole legal custody means that one parent has the right to make decisions related to the health, education and welfare of the children.
- Joint physical custody means that the children spend time living with each parent on a regular basis. This does not mean, however, that the children must spend equal amounts of time with each parent.
- Sole physical custody means that the children live with one parent and the other parent has visitation.
In a California divorce, you and your spouse can agree to a parenting plan which will state which spouse will take care of your children. Otherwise, a judge will decide on a parenting plan. Both parents are responsible for supporting their minor children. The duty to support your child often ends at age 18 but may be extend if certain conditions are met. In addition to child support, parents may be required to pay other expenses related to their children care, such as child care, medical care and/or travel between households.
The amount of child support to be paid by one parent to the other is based on computer-generated established guidelines. Significant factors in determining child support include each parent’s income and the amount of custodial time each parent has with their children.
Child support is not reported as income for federal and state tax purposes. The parent paying child support is not entitled to a tax deduction.
You may request a wage assignment order with your child support order. This is an order that requires a parent’s employer to take child support payments directly from the parent’s wages.
Like all states, California requires parents to support their children, even after a divorce. The amount of child support depends primarily on each parent’s income and other resources, and your parenting time – the time each parent spends with the children.
Spousal Support (Alimony)
Spousal support, also known as alimony, is money that one spouse pays to help the other spouse support themselves upon the filing for divorce. Usually, the spouse receiving such spousal support will pay federal and state income taxes on the money received. The spouse paying spousal support will be entitled to a tax deduction.
The amount of spousal support awarded is determined by considering certain factors, such as: the standard of living during the marriage; the length of the marriage; and, the age, health, earning capacity and job histories of both spouses. If the marriage lasted less than 10 years, it is unlikely that a judge will order spousal support for longer than half the length of the marriage.
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