Deciding to divorce is one of the most difficult things one can do, and going through the process can be one of the most stressful periods in a person’s life. It becomes even more complicated if children are involved. The process involved in divorce often gives rise to many life changes and creates profound stress. The divorce lawyers at San Diego Family Law Attorney hope to make it easier for you and your family. We’re here to guide you before, during, and after your divorce. We offer representation in both uncontested and contested divorce.
Backed with extensive experience in matrimonial and divorce law, our family attorneys thoroughly study the continuously evolving legislation and case laws that have significant impact on the divorce process. We understand that there’s more going on in your life and we work to address your personal concerns. While change is inevitable, you do not have to feel the same about the anxiety and stress that comes with those changes. Our attorneys take each case with sensitivity and create personalized client service to alleviate stress and achieve an outcome you can look back on without regret. Our team ensures the process proceeds smoothly by helping people going through divorce cope with fear, uncertainty, stress, and financial issues. Contact a divorce attorney at the San Diego Family Law Attorney today at 619-610-7425 to discover how we can help you navigate the murky waters of divorce proceedings.
“No Fault” Divorce
In some states, divorce can only be granted if the parties can show they have acceptable reasons to divorce. This is, however, not the case in California. California is a no fault state and this means there’s no need for a spouse to prove that something wrong was done in order to be granted divorce. Judges only consider the fact that one or both spouses want a divorce. For instance, a couple can simply assert that they want to divorce because of “irreconcilable differences” without even stating what those “differences” are. Also, because of the “no fault” status, divorce can be granted even if one spouse does not agree to the move. Divorce is an emotionally difficult, complex, and complicated process for the entire family. It’s critical for your rights to be recognized and protected during the legal process.
Grounds for Divorce in California
According to Fam. Code Section 2310, there are two major reasons for filing for divorce, and they include:
- Irreconcilable differences pursuant to Family Code Section 2310(a)
- Incurable insanity as per Family Code Section 2310(b)
Option 1, irreconcilable differences, is the most common reason for dissolution of marriage. It means that the parties are not able to continue to stay married no matter what the personal reasons for filling for divorce are. Some of these reasons could be financial problems, abandonment, infidelity, or lack of affection. Also, it means that the differences are so great and cannot be healed by any amount of time or therapy. Remember that the court will grant divorce regardless of the reasons or whether the other party wants to divorce or not. When you file for divorce on this ground, you do not have to wait for the other spouse to sign, and also, the chances of your divorce being granted at some point are high.
Option 2, incurable insanity, may appear to be an easier and better option to many. However, filing for divorce on this ground is most often not the correct choice as it will just complicate your situation and the whole process, especially with the fact that it’s much more difficult to prove. If you both agree to dissolve the marriage, it will be an uncontested settlement. In the event that you cannot come to an agreement, your case will be heard at a trial where all testimony and evidence will be provided and evaluated, and then it will enter a final resolution.
Difference Between Divorce and Legal Separation
Being legally separated is not being divorced. Legal separation usually occurs as a result of health care, religious, or financial issues. If you’re legally separated, you cannot remarry until to file for and receive a divorce. You remain on a spouse’s health plan, but if you’re divorced, as a covered spouse, you’ll be removed from the plan once the court enters final judgment. Further, there’s a requirement for one to live in the county they filed in for three (3) months if divorced, while in legal separation this is not a requirement. Most individuals choose to file for legal separation before divorce.
Important to note, you’re not legally separated just because you’ve moved out of the home. You must file it and take note of it. If you’ve settled for marriage dissolution, the best you can do is to retain an attorney to help you through the process. Cases can vary in complexity and length, depending on the children, debts, and assets involved. Typically, the process can take up to six (6) months and can result in court orders concerning division of property and debts, spousal support, child custody, child support, visitation, and family support.
What is an Annulment and What Are the Requirements?
An annulment is a legal process that involves erasing a domestic partnership or marriage. It’s the simplest way to end the relationship. However, qualifying for an annulment is not always easy. A marriage that is bigamous or incestuous is not legally valid. There are specific elements that must be met for you to file an annulment and have it approved. In an annulment, a marriage or domestic partnership can be considered as invalid for either of the following reasons:
- One of the parties was a minor (under the 18 years of age) at the time of marriage
- Either of the parties had a prior existing legal marriage
- One of the parties was registered or married through the use of force, fraud, or while being of unsound mind or physically incapacitated.
Can Divorce Push Through If My Spouse Does Not Agree to It?
In California, there’s something referred to as “Bifurcation of Status”, which means that your divorce date can be rushed even when one party is not willing to agree to the dissolution. In most cases, a trial must be set 3 to 6 months from the date the request is made. Further, if one party is refusing to give out preliminary disclosures or other necessary documents, filing for a Request for Bifurcation can ease worries concerning “status” of divorce.
Alternative Dispute Resolution
If you’re on good terms with your partner and you’re not experiencing any form of domestic violence, you could negotiate the terms of your divorce through the use of alternative dispute resolution. This gives the spouses more control over the outcome of the divorce in addition to saving them a considerable amount of time and money. Nobody knows your family better than the two of you, and the little information you provide in the proceedings is what the judges will use to determine the best decisions that would be of the best interests for your family.
Divorce mediation is an excellent and efficient way to determine the terms of a divorce. Often the parties are on good terms but do not have any understanding of the law or how to divide their assets and debts. It involves both parties working with a mediator who is a “third-party neutral”. A mediator does not make decisions for you, he/she is there to help you understand the law, how to file the required documents, and also facilitates discussions and negotiations. Important to note, you must be careful about the choice you make on a mediator. There are mediators such as psychologists who do not have the legal knowledge and do not know how to properly divide assets.in more difficult instances of mediation, the parties are engaging in fights or are not willing to communicate without a third-party neutral. In such a situation, the mediator can help both parties give out all the information on their assets and debts, and help them engage in calm and effective negotiations aimed at bringing a resolution.
The other method of solving issues outside of the courtroom is known as collaborative divorce. In this type, each party hires their own separate attorney. An agreement is signed between both parties and their attorneys stating that the divorce will not be taken to court. They will then be collaborating regularly in order to determine the terms of the agreements. It is also common for parties to bring in property valuers, accountants, and child custody experts into collaborative meetings. If during the collaborative meetings, the parties cannot come to an agreement and decide to take the case to court, the lawyers will withdraw and that will call for the need of new divorce attorneys. If domestic violence has been a part of your marriage or the alternative dispute resolution fails to yield results, your divorce may go to court.
Equitable Distribution of Property
California is a community property state according to section 760 of the California Family Code. This implies that the goal of a divorce settlement is to ensure equitable distribution of property amongst the parties. Property must be located and identified before it can be divided. Each party is required to provide the other with full and current disclosure of all financial information. Penalties for providing false or incomplete information or hiding an asset can include sanctions, fines, and even loss of the asset. Also, other methods such as subpoenas and depositions may be used to unravel any hidden assets.
In California, community property includes assets and debts acquired during a marriage and thus belongs to both parties. However, under Fam Code 771 property presumed to be a party’s separate property is that which was acquired before the marriage, after the separation, or through inheritance and is not subject to division. In determining whether an asset or debt is community or separate property, matters like the source of the asset, date of marriage, and date of separation will be taken into consideration. In property division, the property will first be categorized as either marital or separate. The parties will then agree on the value of the marital property, which may include working with experts such as business appraisers, forensic accountants, and real estate experts. Lastly, a decision will be made on how to divide the property.
The Waiting Period
In California, the period for dissolution is two-fold. The dissolution is not final unless at least six (6) months and 1 day have passed since the date you served the non-filing spouse (Respondent) with the petition and summons. Also, if the Respondent made an appearance in court before you served him/her, the countdown may start from the date of appearance according to Family Code Section 2339. However, if all issues have not been agreed on and neither of the party has requested for Bifurcation, you’ll be officially divorced on the date final judgment is made.
Spousal Support or Partner Support
After a divorce, one partner may be required to support the other financially on a monthly basis. This is called spousal support. Conversely, dissolution of a registered domestic partnership will result in a monthly payment known as partner support. Spousal support can be awarded during an annulment, legal separation, divorce, or when a restraining order is imposed. A temporary spousal support can be issued before the divorce is concluded if the parties have separate finances and one party is in need immediately. It is imperative to let your attorney know of your situation to ensure your financial needs are taken care of no matter how long the divorce process takes.
Child Custody, Visitation and Child Support
If the marriage included either biological or adopted children, or if the parties are expecting a child at the time of divorce, your divorce judgment may include child custody, child support, and visitation order. Child custody can either be physical or legal. Physical custody determines who the children live with while legal custody determines who makes decisions regarding the children’s education, healthcare, residence, extracurricular activities, travel, religion, etc. Each custody agreement is unique and is tailored depending on the best interest of the child. Parents can be awarded either sole or joint custody.
While both parents are responsible for the financial needs of their child, there will be one parent who will be paying child support. This is a payment made monthly and is intended to pay for costs related to the child, including health care needs, educational needs, child care needs, and costs of traveling between the two parents if they have joint custody.
Free Consultation with San Diego Family Law Attorney
Divorce in California can be complicated. Every divorce process in unique just like every family is. It’s always imperative to seek legal counsel from a compassionate, qualified, and experienced attorney. At San Diego Family Law Attorney our divorce lawyers understand that you’ve been through enough and are dedicated to answer your questions and offer you the best representation possible. Our aim is to get you a fair settlement from your marriage dissolution. We invite you to for a free initial consultation by calling us at 619-610-7425.