California’s Family Law Divorce Laws

Filing Requirements; Residency: To file for a divorce in California, residency requirements must be in order to ensure the court has jurisdiction over your case. The courts cannot hear/rule on your case without proper jurisdiction; therefore, your case will be dismissed if the following requirements are not met.
 
First, one of the parties must have been a resident of the state of California for a minimum of six months and a resident of the County that will hear the case for three months for a judge to rule on your dissolution of marriage case.

Second, The Petition preceding (California Code - Sections: 297, 298, 2320, 2339) for a dissolution of marriage. Both parties may have separate residences pending evidence of the facts and not upon legal assumptions.

Arguments for Filing: The Dissolution of Marriage Petition must state the correct California arguments upon which the dissolution of marriage is being sought after. The suitable lawful position will be one the parties agree on and can confirm, or one that he petitioner can establish to the court.

Grounds for the dissolution of marriage are as follows:

The outcome of a judgment of dissolution of marriage is to restore both parties to an unmarried status when the final court’s decision is granted.

Divorce (break up of the union) or legal separation of husband and wife may be established on the following facts presented to the court: (1) Irreconcilable differences, causing the breakdown of the union. (2) Terminal insanity (not curable).

Moreover, facts brought before the court, which are significant reasons to end the marriage that appears unsalvageable will also aid in the granting of the dissolution of marriage.

Marriages may be ended on the established proof of incurable insanity. This also includes experienced medical or psychiatric evidence.

There is no relieves of spouses obligations for spousal support from a court’s decision for dissolution of marriage based on incurable insanity (California Code - Sections: 2310)

The Petitioner is the party filing the procedure with the counties family law divorce court.

The Respondent is the party that is served with the divorce papers.

The Superior Court of California, County of “?   “, is the court that will oversee the divorce proceedings. A case number will be generated and this court will have jurisdiction over the case. Other matters associated with the breakup of the union will usually be heard in the same court. For instance, child and spousal support, visitation rights, children/child custody, property settlements and debt distribution.

Principal documents required in California to commence and end your legal separation/divorce in California may consist of all or any of the following documents.

• Appearance
• Preliminary Declaration of Disclosure
• Marital Settlement Agreement
• Stipulations
• Waivers
• Declaration for Default or Uncontested Dissolution of Marriage
• Declaration Re Service of Declaration of Disclosure
• Income and Expense Statement

California is a community property state. This means all property that was obtained throughout the marriage will be divided evenly 50/50 by the court if the parties are unable to agree on the division of the property.

What is Property division during a legal separation or dissolution of marriage?  It is defined as community property; therefore, the property/assets fall within any of the following categories:

• joint tenancy
• property acquired during the marriage
• property held in tenancy in common

How can I invalidate the common community property?  
The following proof needs to be presented:

• Proof that the parties entered into a written contract, stating the property is separate and not joint.
• An unmistakable declaration in the deed or additional document confirming  the property was obtained as separate property and not community property

Sometimes the court may grant the property of the community estate to one party in order to seek an equal distribution of the estate. Further, to counterbalance the court may award, from a party's share if it is deemed that there has been a deliberate misappropriation by one party to the leaving out the interest of the other party in the community estate.

How does the Court view Debts incurred by both parties after the date of separation, but before the final judgment ruling on the divorce?

• The party that incurred the expense shall be responsible if the expenses if they were of a non-essential necessity; therefore, the debt may not be offset by the court.
• Common expenses incurred for the ordinary basics of life shall be confirmed and will be subject to the parties' individual needs and capability to pay at the time the debt was acquired
  
  Am I entitled to spousal support?
  
  Well this will depend on the duration of marriage, the financial situation of both parties. The amount of time a party needs in order to get back on their feet. This decision can be set to favor either party; this decision is usually the discretion of the court/judge, which they tend to treat this on a case-by-case matter. Some judges have the reputation of favoring a particular gender or the earning power of the spouses. Your attorney should be familiar with the judge’s past rulings. Remember judges are also creatures of habit; therefore, their past rulings are usually a good gauge to rely on.
  
  

What does the court/judge consider before ordering spousal support?

• The earning capacity of each party required to maintain their standard of living
• The aptitude of the supported spouse; the earning potential for those abilities. The required timeline for the party to developed or polish their skills. This may encompass returning to school and seek new skills in order to better market themselves in the work force.
• Time spent by the supported party dealing with domestic obligations that may have weakened their earning potential. For instance, a party that stood home for several years raising their children may be out of the loop with new procedures, technology and skills within the work force.
• The sacrifice made by the supported party in order for the supporting party to achieve their career goals. For instance, a spouse waiting tables at a restaurant while the other attends law school or medical school.
• The aptitude/skills of the financially stabled party to provide spousal support; this may also include future income, assets and standard of living
• The standard of living recognized throughout the marriage
• Responsibilities and assets of each party
• Duration of the marriage
• The supported party capacity to take on  productive employment without excessively interfering with the welfare of dependent children
• The health and age of the parties
• The history of domestic violence, among the parties, for instance… any form of domestic violence originating from the supporting party.
• The parties tax status
• Hardships to each spouse
• The court aims to have the supported party self-sufficient within a feasible time. Marriages of long duration are taken into greater consideration
• Criminal conviction may be grounds for eliminating or reducing the spousal support.

How is the child’s custody decided in court?

• California courts try to keep the best interest of the children while making their rulings as to who shall be awarded custody. At times, the court may appoint an attorney for the children. This is attorney for the children are referred to as “minor’s counsel”.  Attorney Bettina Yanez is a court appointed minor’s counsel in Orange County, California. Bettina Yanez represents the children the court feels need legal representation. Attorney Bettina Yanez (minor’s counsel) will interview all essential parties and make a recommendation to the court as to who will provide the best welfare for the children. The court will then establish the custody order at its will.
• Further determinations in the best interest of the children
  • The overall safety,  health;  welfare of the children
  • History of abuse by either parent
  • Other parents
  • The percentage of contact with either parent
  • Illegal use of drugs or alcohol abuse by either parent.
    .

Are my children entitled to Child Support?

California child support is calculated on a computer program available to courts and attorneys.

Several factors are entered into the program in order to determine the child monthly support.  Some of the information entered is the parent’s income, percentage of time spent with the children

Income is validated using present and prior w-2’s and income forms.
 
California’s uniform guidelines adhere to:

• The parent's obligation to support their minor children
• Responsibility falls on both parents for the welfare of the children
• Parent's true income and degree of responsibility for the children is taken into account
• Portion of child’s support is allocated based on parents ability to pay.
• The children are the main priority
• Standards of living of both spouses should be shared by the children
• The guidelines try to find to reasonable and effective resolutions to disagreements between parents and searches for ways to avoid litigation
• Sometimes special situations occur and the support falls short of the guidelines set by the formula. This is where you need your attorney to argue and present the facts before the court.
• California’s guidelines are assumed to be consistent  in all cases

Child support orders are implemented to  guarantee that children obtain appropriate, and adequate support reflecting the California’s high living standards

 

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For family law information, please visit... Divorce Attorney Californa blog to learn more about divorce matters in California. The abogado de divorcio California blog is also translated in Spanish for the convenience of our Spanish speaking community. FAMILY LAW ATTORNEY ORANGE COUNTY site that provides discounts for military families. Orange County Lawyers serving your communities since 2000, your best source for a Divorce Attorney.