May 14, 2010

California Divorce Basics

Posted in Divorce tagged at 9:42 am by demetriagraves

As a California based family law attorney I’m often asked to go over the basics of what is involved in a divorce in California. So here’s a brief overview of the divorce process. California is a ‘no-fault’ divorce state, this basically means that when a spouse requests a divorce, they will not need to specify a reason or prove wrong-doing on part of the other party.
No-fault does not mean no disagreements, and unfortunately there are often disagreements between the parties involved regarding how the family assets are going to be handled, or how the kids will be cared for. Not to mention issues of spousal support, child support, custody and visitation. This is where it pays to have an experienced family law attorney on your side. Sorting through these various issues can be complex and it’s important that you have the right advice.
Even if you both agree on how to separate your lives, it is important to have the agreement reviewed by a professional. A qualified family law attorney who has been involved in many divorces can help you spot weaknesses in the agreement and this will help ensure that the final agreement is strong and will last for many, many years, with out further disputes or difficulties. From time of initial filing, the soonest a divorce can be finalized is 6 months.

To file for divorce in California there is a residency requirement, you must have lived in California for at least six months and be a resident of the county in which you file for at least three months. If the other party lives in another state they have the right to demand that the case be heard in their state. And most likely they are going to request just that.
To obtain a divorce in California a spouse may file on one of two grounds: Irreconcilable differences or incurable insanity. ‘Irreconcilable differences’ basically means that the applicant believes the marriage cannot be saved. Because California is a no-fault state, the party filing for dissolution is not required to state why they wish a divorce and they are not required to provide any documentation regarding their reasoning. In fact, the court will not consider any data having to do with why the divorce is being requested or why it should be denied. The simple fact of a request for a divorce by either party is considered sufficient grounds to grant it.
If you and your soon to be ex-spouse have no assets or children, then filing for a divorce is much simpler. If there are material assets or if there is any disagreement about how the assets of the marriage are to be divided, or if there are kids involved. This is where it can get more complicated and you really need professional legal assistance to guide you through this process, so you don’t get any unexpected surprises.
The court has established a process and a procedure for divorce. The steps are as follows:
The party that initially files for a divorce is called the ‘petitioner’. The papers they file with the court are called a ‘dissolution of marriage’ or dissolution for short. These papers simply describe that a divorce is desired. The other party is then officially presented with the dissolution documents, a process which is called ’service of process’. The receiving party is referred to as the ‘respondent’. The date of service establishes the start of a 6 month period which California courts require as a minimum time to grant a divorce. This 6 month minimum period is usually for an uncontested divorce. More on that below.
The respondent has 30 days from time of service to file an answer with the court. If the respondent does not file an answer, the court will record a ‘default’ and simply grant the divorce when the 6 month waiting period is complete. This is often called a ‘no contest’ or uncontested divorce and is common practice when there were no assets to divide and no children. If you have been served divorce papers and if there are assets to divide or children involved you must take action within 30 days or you will lose important rights.
When the respondent files an answer, this starts the process of ‘discovery’ in which the parties each have a chance to describe to the court the assets they feel should be involved in the divorce, present their wishes regarding its distribution and also present their wishes regarding the custody of the children.
In cases where the parties can agree between themselves regarding the assets, their distribution and custody of children, the time and expense of a divorce is greatly reduced. If you are involved in a divorce and there are assets or children involved, it is important that you secure the help of an experienced family law attorney. Who will help you establish an agreement that is in your best interests and which takes into account the well established standards regarding asset distribution and custody.
If the applicant and respondent do not agree regarding the assets involved in the divorce, their division or on custody matters, then it is up to the parties (through their attorneys) to present evidence to support their wishes and it is up to the court to make a decision based on the evidence presented. A contested divorce in California that involves modest assets can take between one and three years to resolve.
California courts will, for the most part, if practicable divide “community property” equally. Community property is what the couple earned (assets minus debts) from the time of the marriage to the date of their separation. Community property can be divided unequally by mutual agreement. For example, one person may assume all the family debt in exchange for another benefit such as keeping a retirement account. In rare instances, the court may find compelling reasons to divide contested community property unequally. For example, if the court feels that one party is in need of more support that the other, it may award that party a higher share of the marital property. There are also formulas for calculating child support and spousal support but this topic will be covered in more detail in another article.

I offer a free confidential initial consultation where you can get your questions answered and your own individual situation reviewed. Please don’t hesitate to take advantage of this complimentary initial consultation if you are considering a divorce or have been served with papers and you’d like some further advice.

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