There is no legal process that relieves all the stress, part and parcel to dissolving a marriage. However, in an effort to lessen conflict, California was the first state to enact a no-fault divorce law. In no-fault divorce, no blame is placed on either spouse for the marriage breakdown.
Based on the following grounds either spouse can request a divorce: 1) Irreconcilable differences that have caused the irremediable breakdown of the marriage, or 2) Incurable insanity. While some divorces are simple and others are more complex, all divorce proceedings begin with a petition that one spouse serves to the other. In California , after the petition is served, the earliest a court can finalize the divorce is six months. Of course, if aspects of the divorce are contested, it may take longer to dissolve the marriage. The final judgment is the last step in the legal process, finalizing the divorce. The judgment rendered resolves property, child custody, spousal, and child support as well as visitation issues.
When a couple can reach a basic understanding and agreement, an experienced attorney is able to resolve their divorce easily and relatively inexpensively. An attorney or a mediator can also help negotiate a settlement, if only a few minor details stand in the way of resolving the divorce. Unfortunately, when both parties are uncompromising and no agreement is possible, litigation may be the only alternative. Going to trial is not only expensive, but often a stressful route to resolution.
In a simple, uncontested divorce, many people may be capable of filing for divorce themselves. It’s necessary to follow exact procedures in filling out the required forms and drafting the judgment, otherwise the court may not finalize your divorce. However, there is information available online, at local bookstores and through courthouse family facilitators to assist you in performing your own divorce.
Property Division
California is a community property state, and property you and your spouse acquire together during a marriage is considered shared. Separate property is property you or your spouse either owned prior to the marriage, inherited, or that was specifically gifted to you. It could also include property you individually acquired during the marriage, which was not co-owned.
Depending on the extent of property owned and the couple’s desire to minutely detail property division, settlement can be very involved and complex or relatively simple. In settling property division during divorce, there are a number of financial factors to consider, some of which may include:
- • Assets valuation
- • 401 K
- • Stocks and Bonds
- • Residence
- • Filing bankruptcy
- • Dissolving a family owned business
- • Community property
- • Separate property
- • Home owned business
- • Gifts
- • Inheritances
- • Personal injury recoveries
- • Assets acquired prior to the marriage
What constitutes community property and how to divide it between spouses remains the most contested aspect of property division. Because property division has long term and far reaching effects, seeking legal advice is often vital to your future. By hiring a lawyer you can protect what should be rightfully yours. Not only may an attorney help you arrive at concessions and reach a settlement, but you also may find you arrive at decisions quickly and overall save costs. If you and your spouse are unable to agree on how to divide your property, the court will make final decisions. Turning over property division over to the court can result in a long and expensive process.
Spousal Support
Spousal support is a specified amount of money per month that the court orders one spouse to pay another.
Temporary spousal support is support paid when a divorce is pending, prior to the trial date. Permanent spousal support is an order to pay support as a result of the divorce settlement. “Permanent” in this case doesn’t mean that spousal support lasts forever. When the spouse receiving child support becomes self-supportive, or remarries, the court usually no longer requires spousal support.
Two types of marriages are considered when determining spousal support:
- • Short term marriages
- • Long term marriages – generally marriages lasting 10 years or more, measured from the date of marriage to the separation date. The court retains jurisdiction over spousal support until death, or until the spouse remarries
The judge reviews a number of factors when determining whether permanent spousal support is justified and if so, arriving at the payment amount. Generally in gauging spousal support, the standard of living during the marriage and length of marriage is weighed against the spouse’s ability to become self-supportive. More specifically, based on the California Family Code, a number of factors reviewed include:
- • Marketable skills of the spouse receiving support based on:
- • The available job market
- • Time and expense for education or training
- • Retraining for more marketable skills or employment:
- • Time unemployed because of domestic duties
- • Time and effort spent contributing the education, training, career position or licensing of the supporting spouse
- • The ability to pay based on earning capacity, earned and unearned income, assets, and standard of living.
- • Both parties needs based on the standard of living established during the marriage.
- • Obligations, assets and separate property of each.
- • The duration of the marriage.
- • Capability of employment while caring for dependent children.
- • The age and health of the parties.
- • The immediate specific tax consequences to each party.
- • The balance of the hardships to each party.
- • Reasonable time for supported spouse to become self-supporting. (A reasonable period of time generally shall be 1/2 the length of the marriage.)
The issue of spousal support is quite complex. Each party has a unique set of circumstances that require a different application of the law. If you are contemplating divorce or going through the process, we suggest you seek legal counsel when addressing the issue of spousal support
