Marrying in Church and Divorcing in Court
A divorce involves termination of the marriage status - and usually this is one of the more simple issues - but a psychological one - and resolution of the rights and duties that arise from the marriage with respect to custody, visitation, division and confirmation of property (including reimbursements), parentage, premarital agreements, division of retirement interests, support, insurance and fiduciary duties. A divorce (or separation or nullity) legally begins when the Petitioner files a 'Petition.' The other party is called the Respondent and files a 'Response' unless the case proceeds by default, which means the case is resolved without the Respondent appearing. Upon filing, a party may seek emergency or temporary orders, which could be in effect pending settlement, trial, or further hearings. Orders made may include payment of child support, spousal support, use of property, payment of debts, custody and/or visitation or restraining order.
How Bad Should the Marriage Be Before I Divorce?
The object of the marriage must have broken down and there must be no possible means to remedy the relationship. Traditional grounds such as desertion, abandonment, cruelty, or adultery, are not required.
Same Sex Marriage
On July 7, 2014, Governor Brown signed Senate Bill No. 1306 which removes discrimination in the Family Code. The rights and duties of marriage are now open to LGBT couples when marrying a person of the same sex. This site applies to all unions.
Battles in Court
The issues in a divorce may be contentious. Parties may present arguments to the court at various stages of the case, including at Request for Order hearings, evidentiary settings, trial, or various separate (bifurcated) trials. Common areas of dispute are custody and visitation, and who spends time with the children, and when. Another contentious area might be characterization of property, which may become blurred or confused when either or both parties have separate money or inherited money invested in the purchase of community property, which then has been refinanced and transferred.
Paying Support for Your Children
Usually calculated using computer software, that sum follows the formula provided in the Family Code (FC 4055). The sum of child support is driven by the key factors of income and the non-custodial percentage (NCP %). The sum of child support is also influenced too by an individual's tax filing status, health insurance costs, day care costs, job related expenses, union dues and itemized interest deductions. Software programs are commonly used, including the Dissomaster; While the Department of Child Support Services formerly used the Dissomaster;, now published by Thompson West, DCSS is now mandated to use the calculator found at http://www.cse.ca.gov/ChildSupport/cse/guidelineCalculator. Caveat: attorneys may tweak the settings of the software to maximize their client's position and the calculations printed out are hard to understand for most. Since child support may be paid for up to nineteen years, it generally makes sense to ensure that the sum is correct.
And Paying Money to your Former Partner...
Part of a 'pendente lite' order this form of support is calculated in most counties in Southern California using the Santa Clara formula. Orders made early in a case are usually temporary orders. Permanent orders are arrived at, theoretically, in consideration of the factors written in FC 4320. This Code section includes the standard of living criteria. Some attorneys have their own rules of thumb for arriving at the permanent sum, while many just use the 'Santa Clara' numbers for temporary support. Neither way is really correct. Case law requires a judge to use discretion when weighing the factors under FC 4320. The duration of spousal support is subject to two key code sections, the first being that support should be based upon a goal that a person should become self-supporting within a reasonable period of time and that this period is generally presumed half the length of the marriage (FC 4320 (l)). The second is that marriages of ten-years or longer are deemed to be marriages of long-duration and that the previous presumption does not apply (FC 4336). Further that the court will retain jurisdiction in these cases, except were the parties agree otherwise.
Dividing Community Property in Half
Property acquired during a marriage is characterized as presumptively community property (FC 760) and property gifted or inherited is separate property (FC 770). The heir or donee bares a legal burden of proving this because of the community presumption. Issues of property division may also be extremely complex: this is especially true of stock options, privately held partnerships, retirement assets, businesses or corporations. With some exceptions, property acquired by a married person during the marriage and before separation while domiciled in the State of California is presumed community property. Noticeable exceptions are property that is owned before the marriage, property that is acquired by gift, bequest, devise or descent, and rents, issues and profits of any of the aforementioned. Often divided between a payee and the alternate payee by means of a qualified domestic relations order, or 'QDRO.' It is important for the client to be realistic about his or her own needs, and financial planning is often required.
Uncontested and Contested Divorce Cases
Most marital cases are settled in part by court order, and in part by settlement. A case may be resolved entirely by negotiation and settlement. In this case the parties may submit a Judgment to the court accompanied with a declaration under FC 2336. The parties need not appear in court, and the trauma and emotional expense of litigation is avoided. An attorney's role here is important, both in structuring the agreement, and preparing the terms of the agreement. The key factors in favor of negotiated settlements are that the parties are in control of the outcome, children are not subjected to parents spending years in litigation and the result is that neither party feels an urge to capitalize on the other's future mistakes. Some cases have to be litigated though. Parties that adopt rigid, extreme positions, for example, compounded by a history of domestic violence or other behavior that causes distrust are seldom able to negotiate. This is why we have a court system staffed by sensible Judges.
Abuse in Family Code Section 6203 - the Domestic Violence Protection Act
In certain abusive situations, a party may seek CLETS restraining orders under the Domestic Violence Protection Act, part of the Family Code. The court may make many specific orders, including those regarding your spouse's (or opposing party's) firearms, so-called 'no-contact orders' and/or 'stay-away' orders. The local police or sheriff's department enforces these orders, which are entered into the Department of Justice database, vigorously. Abuse is defined in the Family Code as intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, or placing a person in reasonable apprehension of imminent seriousbodily injury, to that person or another, as well as engaging in behavior that could be enjoined under FC 6320.