by
Robert C Borris Jr
1. WHAT ARE THE GROUNDS FOR DIVORCE IN CALIFORNIA?
In 1970, California became the first state to allow "no-fault" divorce. This means you no longer have to accuse your spouse of being cruel, committing adultery or doing anything else that caused your marriage to break up. Also, you need not obtain your spouse’s "consent" to a divorce. Either of you is entitled to a divorce as a matter of law.
In California, there are only two grounds for divorce, which the law now calls "dissolution." One is "irreconcilable differences." This means that you and your spouse no longer can make your marriage work. You do not have to tell the court what your problems are. You only have to say that the marriage will not work and counseling will not help save the marriage. Even if you believe your marriage is working but your spouse does not, the court will dissolve your marriage. The second ground for dissolution is incurable insanity, but it is rarely used.
Some counties have free or low cost "conciliation" or "mediation" services. These are counseling services that you may want to use to try either to save your marriage, to keep your relationship with your spouse from getting worse during the dissolution or to resolve disagreements over child custody. However, both you and your spouse must agree to use the services.
2. HOW DO I FILE FOR A DISSOLUTION OF MARRIAGE?
You or your spouse must have lived in California for at least six months and in the county for three months before you file. Then, you or your lawyer must file a number of papers including a divorce petition with the clerk of the superior court of the county where you or your spouse lives. Unless you have a very low income, you must pay a fee to file these papers.
3. WHAT HAPPENS AFTER I FILE?
You also must have copies of the petition and a "summons" personally served upon your spouse. The summons is a document which gives notice that you are filing for a dissolution. (If you cannot find your spouse, the judge may approve another way of notifying your spouse that you are filing.) The petition tells the court and your spouse what issues (i.e., child custody, support, spousal support, property division) need to be addressed and resolved in your dissolution. The summons tells your spouse that he or she has a chance to respond to the petition for dissolution within 30 days. In the response, your spouse indicates the areas of disagreement that need to be resolved by the court. For example, your spouse might object to your request for spousal support or sole custody of your children. You can purchase a dissolution form packet for a minimal fee from the clerk of your county's superior court. These forms are also available for online completion in some counties.
Once the dissolution papers are filed and the summons is issued, both spouses are prohibited from removing their minor children from the state without the other spouse's approval, disposing of property without the other spouse's or court's approval and canceling or changing insurance policies. You or your spouse may then ask for a hearing so a judge can decide any temporary child custody, visitation rights, and support or "restraining order" disputes.
After the temporary issues are settled, you, your spouse and your attorneys will begin to work on permanently resolving the issues raised in the dissolution. Suppose you and your spouse-with the help of your attorneys-cannot agree about permanent custody and support arrangements or a property settlement (see #5). Then, you both must go to court for a trial where a judge will make these decisions. California law now requires that each spouse prepare and serve upon the other a "Declaration of Disclosure" which contains an Income and Expense Declaration and a Schedule of Assets and Debts. The purpose of this law is to streamline the dissolution proceeding by having each party disclose income, expenses, assets and obligation to the other without the necessity of a deposition or other forms of discovery, at least as to basic information. You may want to resort to other discovery methods, such as a deposition. You may not have to appear in court if your spouse agrees not to contest the dissolution or if your spouse "defaults"-does not file an answer to the papers asking for dissolution. But, you then must file an "affidavit" or sworn statement with the court saying that the marriage is ending because of irreconcilable differences. You also do not have to go to court if you get a summary dissolution (see #4). If you wish to appear in court and avoid waiting for your judgment of dissolution by mail processing you can ask for and if granted, attend a "default prove-up" or "uncontested" hearing. The court or, your attorney if you are represented will ask you some basic questions, the answers for which are required by law (i.e., your residence in California and your county, whether irreconcilable differences have arisen between you and your spouse, etc.) The judgment dissolving the marriage will specify the date your marriage is legally terminated, which cannot be less than six months from the day that your spouse is served with the summons and petition not the date of filing. You cannot remarry legally until after that date. This six month period is intended by the legislature to provide a "buffer" period, if you will, to provide the parties an opportunity to reconcile and save their marriage. What if you want to remarry or have some other reason for wanting to be single at the end of six months? A judge can make your dissolution final even though some property or other issues are not yet settled. The procedure for doing this is referred to as "Bifurcation of Marital Status". Bifurcation of Marital Status is sometimes conditioned upon various requirements set forth in Family Code Section 2337 being met, such as maintenance of health insurance by one party upon the other until either trial or settlement of the case.
4. WHAT IS A SUMMARY DISSOLUTION?
With a summary dissolution, you do not have to go to court and you are not represented by a attorney. You may qualify for a summary dissolution if you have been married five years or less, have no children, do not own a home or other real estate and do not have much other property (see #5), among other things. Both spouses must agree to all the terms of a summary dissolution, and either one can call it off for any reason before the dissolution is final. For more information, you should get a booklet called Summary Dissolution Information from the clerk of your county's superior court. Even though you do not have to go to court, you may want the advice of a attorney (see #12). You may need help filling out the official forms required for a summary dissolution, and you may not be sure whether some possessions are yours or your spouse's (see #5). You also may have more property, including pensions or profit-sharing plans, than you think. Like a regular dissolution, a summary dissolution requires filing fees and takes at least six months.
5. HOW WILL PROPERTY BE DIVIDED?
California, unlike many states, has community property laws. These laws recognize that both spouses make valuable contributions to a marriage, even though only one of them may work outside the home. Everything you own is either "community property" or "separate property" (there is also "quasi-community property” in certain instances). Quasi Community Property is all property out of California that either you or your spouse obtains through your labor or skills during marriage and before separation as well as most debts incurred during the marriage.
Each spouse owns one-half of all community property. This is true even if only one spouse worked outside the home during the marriage and even if this property is in only one spouse's name. Community property is divided between you and your spouse during dissolution. You and your spouse can agree in writing that neither of you own any community property. You both should get legal advice before entering into such an agreement.
Separate property: This includes real estate, money, furniture or any other belongings-and any interest, rent or profits received from these items- that you or your spouse owned before you married or acquired after the date of separation with your separate earnings, as well as inheritances that one of you received either before or during marriage. It also includes certain gifts to you only-not you and your spouse and also gifts made to you by/from your spouse. Separate property is not divided during dissolution.
"Separation" does not mean legal separation. It means when the parties stop living together; however, the law has now been modified in view of rising real estate values and rental charges which require parties to continue living together for economic reasons. Whether or not a separation occurred on a particular date is often a hotly contested issue in dissolution litigation. There is considerable case law on the issue, as it is possible to be "separated" and still living together. It is also possible for the parties to be living in separate households but "not separated". The date of separation is important because it sets the cutoff for the operation of community property laws on income and other assets. Usually, your separate property stays your separate property even if you mix it with community property. This is true unless you sign a paper giving up your property. It is important to seek legal advice regarding property held in both names, particularly if the property was purchased before January 1, 1984. There are complex rules regarding reimbursements one spouse may be entitled to from the other spouse on account of the other spouse's holding separate property assets.
When your marriage is dissolved, any money you owe will be divided into community property debts and separate property debts. Debts that either you or your spouse acquired during marriage are community property debts, with some exceptions such as student loans which are considered separate property debts. This includes bills which were incurred by one spouse without the knowledge of the other (i.e., husband charges a set of golf clubs on the parties' VISA without telling his wife). Community obligations include credit card bills, even if the card is in your name only. But, in most cases, debts owed before getting married or incurred after separating from your spouse are your separate property debt. Community property possessions and community property debts are divided equally unless you and your spouse agree to an unequal division. (You may want to check with an attorney about the tax consequences of an unequal division.) However, if your spouse agrees to pay a community property debt and then fails to do so, the debt still must be settled and you may have to pay. If this happens, you later may be able to sue your spouse for the money, called "indemnification".
6. WHAT KINDS OF COMMUNITY PROPERTY AM I LIKELY TO OWN?
Many married couples own "real estate"-a home, land or rental property-furniture, appliances and a car as community property. You and your spouse also may have cash in checking and savings accounts, stocks and bonds, IRAs, pension and profit-sharing plans, life insurance policies, tax refunds or a business -all of which can be community property. In fact, you and your spouse may have more community property than you realize. Your attorney can help you make sure that all your belongings are properly listed as either community or separate property. For example, your attorney can explain any rights you may have to your spouse's pension or profit-sharing plan and whether you are entitled to a share of your spouse's disability payments or "derivative" social security benefits.
7. WHO WILL DIVIDE THE COMMUNITY PROPERTY?
You and your spouse can decide how to divide your community property. You can divide it any way you like, even if the division is unequal, but you should do so in writing and have it approved by the court. This can be a complicated process, and each of you may want a attorney's advice. Or, you may want to see a mediator-a trained neutral party who sits down with you and the other person to try working out an agreement that you both can accept. Some family law attorneys are mediators (see #12) or can recommend one. For more information on mediation, see the State Bar pamphlet, Should I Try And Settle My Problem Out Of Court which is available from the Office of Legal Services of the State Bar. If a judge makes the decision, your belongings will be divided evenly-unless there are unusual circumstances. However, ownership of each of your belongings might not be split between you and your spouse; instead, a judge might give each of you things of equal value. For example, if your spouse gets the furniture and appliances, you might get the family car or something else of equal value. Perhaps your home is the most valuable community property you and your spouse own. All your other possessions added together do not equal the value of your home. If you and your spouse cannot agree on what to do with your home, the judge will make the decision. The judge might decide that it should be sold and the money it brings in divided equally between you and your spouse. Once the judge approves the property settlement that you and your spouse agree to, you cannot make changes unless both spouses agree in writing.
8. WHAT IS SPOUSAL SUPPORT?
"Spousal support" is the name for ‘alimony’ in California. No matter what you call it, spousal support is money that one spouse pays to help support the other after a dissolution has been filed. "Child support" is the money one spouse pays the other to help with the cost of raising your children after a dissolution has been filed. For more information on child support, see Who Gets Child Custody in a Divorce? on this website. You and your spouse can decide if one of you should receive spousal support. If you cannot agree, a judge will decide whether spousal support should be paid, who will pay it, how much it will be and how long it will last. In making a decision about spousal support, a judge considers the standard of living that you had during the marriage and the extent if any, to which that standard can be maintained now that there are two households to maintain. A judge also will consider each spouse's age, health, earning capacity and job history. Suppose one of you is not working. Then, the considerations include how difficult it will be to get a job, the amount of money the job might pay, whether a job would interfere with taking care of the children, whether job training would be needed and, if so, how long the training would take. Spousal support may be first established after a hearing called and "OSC" or "Order to Show Cause re: Spousal Support" early on in the dissolution proceeding. Generally, the amount of spousal support ordered at such a hearing (at which only temporary orders are made) is calculated as 40% of the supporting spouse’’s net monthly earnings less 50% of the supported (one to receive spousal support) spouse’’s net monthly earnings. At trial, however, the Court does not use this 40%- 50% formula; rather, as stated above, the Court will look to the criteria set forth in Section 4350 of the Family Code:
(1) The extent to which the earning capacity of each spouse is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: (A) The marketable skills of the supported spouse; the job market for those skills; the time and expenses required for the supported spouse to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. (B) The extent to which the supported spouse's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported spouse to devote time to domestic duties.
(2) The extent to which the supported spouse contributed to the attainment of an education training, a career position, or a license by the other spouse.
(3) The ability to pay of the supporting spouse, taking into account the supporting spouse's earning capacity, earned and unearned income, assets, and standard of living.
(4) The needs of each party based on the standard of living established during the marriage.
(5) The obligations and assets, including the separate property, of each.
(6) The duration of the marriage.
(7) The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in the custody of the spouse.
(8) The age and health of the parties.
(9) The immediate and specific tax consequences to each party.
(10) Any other factors which it deems just and equitable.
The duration of spousal support depends in large part upon the length of the marriage. The Family Code states:
(b) EFFECT OF DEATH OR REMARRIAGE. Except as otherwise agreed by the parties in writing, the obligation of any party under any order or judgment for the support and maintenance of the other party shall terminate upon the death of either party or the remarriage of the other party. (d) Termination at end of fixed period; marriage of long duration. An order for payment of an allowance for the support of one of the parties shall terminate at the end of the period specified in the order and shall not be extended unless the court in its original order retains jurisdiction. Except upon written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely where the marriage has been of long duration. For purposes of retaining jurisdiction, there is a presumption affecting the burden of providing evidence, that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this section precludes a court from determining that a marriage of less than 10 years is a marriage of long duration. Nothing in this section limits the court's discretion to terminate spousal support in subsequent proceedings upon a showing of changed circumstances.
Perhaps neither of you needs spousal support when your marriage is dissolved. But needs can change. One spouse might have a long and expensive illness. The other spouse might lose a job. As a result, your attorney may advise you to ask the judge to "keep the issue open" by "reserving judgment." Then, you will be able to ask a judge for spousal support in case your needs change during a given period. Under certain circumstances, you or your spouse may go back to court and ask the judge to increase or lower the amount. You also should know that federal and state income taxes have to be paid on any spousal support payments received. And the spouse who makes the support payments will be able to take part or all of the amount paid as an income tax deduction. Courts now are able to order "wage assignment" directing a spouse’s employer to pay spousal support or child support directly to the other spouse. Under former law it was necessary in order to obtain a wage assignment to prove that the payor spouse was delinquent in payments. Wage assignment issued therefor was considered a "stigma" because it inferred you could not be trusted to pay the support voluntarily. Wage assignment under the new law is available without proving delinquency. Wage assignment does not affect one's' credit profile as a derogatory reference, and it obviously does not go on a criminal record. Wage assignment cannot be ordered, however, where the spouse is self-employed. Enforcing a support order against a self employed person can be very frustrating and problematic.
9. WHO WILL GET CUSTODY OF THE CHILDREN?
You and your spouse can decide who will take care of your children. You can choose between "sole custody" or "joint custody." Sole custody means that one parent has primary responsibility for bringing up the children. Joint custody means that both parents share responsibility. If you and your spouse choose joint custody, you can decide on joint legal custody, joint physical custody or both. With joint legal custody, both parents are involved in making important decisions about the children, such as authorizing medical care or deciding where they will go to school. Joint physical custody means that the parents share the day-to-day care of the children. The children do not have to spend equal amounts of time with each parent, although they may do so. You should know that, if you and your spouse cannot agree about custody, it is mandatory that you try to solve the dispute through family court mediation before you see a judge. Family court mediators have training in mediation skills and in understanding the needs of parents and children. Most counties have mediation services, and some offer one or a limited number of sessions at no charge. To find a family court mediation service, look in the telephone directory under your county superior court or call the county clerk's office for information.
See my article- Who Gets Child Custody in a Divorce? on this site.
10. CAN I GET A LEGAL SEPARATION?
Yes. Perhaps you and your spouse are living apart and have no hope of getting back together. You may have religious, insurance, tax or other reasons for wanting a "legal separation" instead of a dissolution. Then, you and your spouse may ask a judge for a judgment of Legal Separation. Unlike a dissolution, you can get a legal separation without living in California for six months or your county for three months before filing. When you make your separation request, property settlement, child custody and child support, and spousal support arrangements also must be made. Once you and your spouse are separated by the court, anything you earn is your separate property. Of course, a legal separation does not end your marriage. You cannot remarry unless you first get a dissolution. What if you ask a judge for a legal separation and your spouse asks for a dissolution? In this case, the judge will grant the dissolution.
11. CAN I GET AN ANNULMENT?
If you get an annulment, which now is called a "nullity," the judge will say that, legally, your marriage never existed. And you will be able to remarry any time after the judge grants the nullity. For example, you may be able to get a nullity if you married at a young age without the consent of your parents or guardian or if certain types of "fraud" or deceit were involved. Common allegations of fraud include, i.e., one spouse's failing to inform the other that he had no intention of having children, or her failing to tell him that she was addicted to drugs. Unlike a dissolution, you can get an annulment without living in California for six months or your county for three months before filing. A party to a marriage that is void or voidable may petition the superior court for a judgment of nullity of marriage. Like a judgment of dissolution, a judgment of nullity (formerly called an ''annulment'') restores the parties to the status of unmarried persons. Unlike a judgment of dissolution, however, a judgment of nullity, whether of a void or of a voidable marriage, is said to ''relate back'' and erase the marriage and most, if not all, of its incidents from the outset, subject to certain equitable limitations. In other words, the parties are treated as if they never were married. The longer a marriage is, the more difficult it can be to obtain an annulment, especially if annuling the marriage would deprive a party of substantial community rights..
12. SHOULD I BE REPRESENTED BY AN ATTORNEY?
Since property settlements can be very complicated, a attorney can help you decide which of your belongings are community property and which are separate property. An attorney also can tell you how the court may divide your property and help you put your property settlement agreement in writing. An attorney can help you plan in matters where timing is important. For example, you might not know that you must be married for at least 10 years to qualify for social security "derivative" benefits. An attorney not only can advise you if an unexpected problem comes up but also can attempt to protect you if your spouse files for bankruptcy before you receive the money due to you in the property settlement. And, a attorney may be able to help you notify your spouse about the dissolution if you are unable to do so. In addition, an attorney can advise you on how much money, if any, you should pay or receive for spousal or child support. Attorneys who handle dissolution and custody cases are called “family law attorneys”. Some are designated by the State Bar of California as "certified specialists" in family law if the attorney applies for this. This means that they have met standards for certification-experience and examination-by the State Bar of California. Not all attorneys who have experience and expertise in family law, however, have sought certification.
