Family/Divorce Law in Southern California
There are two methods in which a marriage may be ended in the state of California. They are an Annulment/Nullity and Dissolution/Divorce. A Legal Separation is an alternative process which spouses may choose instead of fully ending the marriage. Our office is well versed in all legal procedures to end a marriage and can assist you.
An annulment or nullity
is when the Court says a marriage is not legally valid. Once the Court orders
the annulment it is as if the marriage never happened because it was never
legal. Annulments are very rare.
In California a divorce
is referred to as dissolution of marriage. Each county has a Superior Court
which handles these cases.
Is there a waiting period to be divorced?
In California there is a
six month waiting period between the commencement of a dissolution action and
until the marriage can be ended. Unfortunately, many dissolutions take longer
than the minimum six months to be negotiated and/or litigated and processed
through the Court.
In addition to a waiting
period, California must have jurisdiction over a person before a divorce can
even be filed. Prior to filing for dissolution in California, either party must
be a resident of California for six months and a resident of the county in
which the matter will be heard for three months.
What Are The Grounds For Dissolution?
California is a no fault
state. Therefore, there are two grounds for dissolution in California:
Irreconcilable difference is when there is a breakdown of the marriage. This is
the most common ground for dissolution.
A marriage may be dissolved on the grounds of insanity if one party has the
legal incapacity to make decisions. A marriage will only be dissolved for this
reason upon proof including competent medical and psychiatric testimony.
What Issues Are Determined In A Dissolution Matter?
When spouses or parties
are ending a marriage in California the judge will make orders about many issues
in the marriage. These issues include: child custody, child support, property,
debts, spousal support and attorney's fees.
The Court will make orders regarding the parties' children who are under the
age of 18. Please see below regarding child custody for more information.
The Court will make
orders regarding child support for the parties' children who are under the age
of 18 and who have not graduated high school. Please see below regarding child
support for more information.
The Court will make
orders regarding all community property – all property earned or purchased
during the marriage. The Court may also make orders regarding separate property
of each individual or if any reimbursements are owed to one or both of the
parties. Parties will be required to disclose their income and assets to the
other party during the dissolution process.
The Court will make
orders regarding all debts of the marriage. Parties will be required to
disclose all debt information to the other party during the dissolution
The Court may make orders
regarding spousal support or alimony. Please see below regarding spousal
support for more information.
The Court may make orders
as to whether the one party is to pay their spouse's attorney's fees.
Can The Court Make Temporary Orders While The Final Dissolution is Pending?
Prior to reaching a final
resolution, parties may request the Court make temporary orders (or “pendente lite
” relief) regarding any of
the above issues or domestic violence. These temporary orders are designed to
maintain status quo or protect parties before the contested issues can be
decided at trial or in a final judgment. A party can request temporary orders
by filing a Request for Order or Request for Domestic Violence Restraining
Order with the Court. After filing the request, a court hearing will occur for
the judge to make a determination on the requested temporary orders. These
temporary orders may remain in place until the court makes new orders.
How Can A Final Dissolution Judgement Be Reached?
A judgment or final
decree in a dissolution matter may occur through four different avenues:
through a default, uncontested agreement, litigation or summary dissolution.
A matter may proceed by
default if, after thirty days from being served, the responding party (the
Respondent) does not file his or her response with the Court. When this occurs,
the filing party (the Petitioner) may request the Court to proceed without Respondent's
input. The Petitioner will be responsible for filing the correct paperwork and
judgment and possibly attend a prove up hearing before the Court will grant the
Uncontested or Stipulated:
A matter may proceed
uncontested or stipulated when the parties are in agreement on all issues in
the dissolution. These dissolutions can be completed by the submission of
judgment paperwork directly to the Court. Oftentimes no Court hearings are
required when the parties are in agreement in an uncontested dissolution. Our
office is able to help parties mediate their dissolution to come to an
uncontested dissolution. Please see below for more information regarding
If the parties are not
agreeable on all issues, then the Court may proceed through litigation. Various
Court hearings including a trial will be required. At the trial, the judge will
make a decision on any issues the parties do not agree.
Parties who have been
married 5 years or less, have no children and meet other requirements may agree
to have their marriage dissolved by summary dissolution. If dissolving their
marriage through summary dissolution, the parties will petition the Court
together and come to an agreement.
Domestic Partnerships and Same-Sex Marriages
The above laws and
procedures apply to the dissolution of California domestic partnerships and
same-sex marriages. Our office is experienced in assisting in the dissolution
of domestic partnerships as well as marriages.
A legal separation does
not end a marriage. After the legal separation is completed, the parties remain
married. Parties remain married in name only; they no longer have the
concomitant rights and responsibilities that attach to marital status.
What Are The Reasons to Pursue Legal Separation Instead of Dissolution?
- Religious reasons
- Personal beliefs.
- The parties do not want
to be divorced but want to live apart and have the Court make orders regarding
money, property and parenting issues.
- The parties do not meet
the California jurisdiction requirements.
- For a legal separation,
only one party must live in California and there is no 6 month residency
- The parties do not want
to get divorced for financial reasons (most common is to remain on the other
party's health insurance, if the employer will allow it).
What Are The Grounds For Legal Separation?
The grounds for legal
separation and dissolution are the same: irreconcilable differences and
insanity. See above for more information about the grounds.
What Issues Are Determined In A Legal Separation?
The Court may make orders
about the same issues in a legal separation as a dissolution. The issues
include: child custody, child support, property, debts, spousal support and
attorney's fees. See above for more information about these issues.
What is the difference between Legal Custody and Physical Custody?
Legal Custody refers to who shall have the right and responsibility to make decisions related to health, education and welfare of the child(ren). Physical Custody refers to the amount of time a child will spend with each parent; where the children live; how day-to-day responsibilities are fulfilled.
What is the difference between Join Legal Custody and Sole Legal Custody?
Joint Legal Custody means that both parents shall share the right and responsibility to make the decisions related to health, education and welfare of the child. In Sole Legal Custody those decisions would be made by only one parent. In making an order for custody with respect to both parents, the court may grant joint legal custody without granting joint physical custody.
What is the difference between Joint Physical Custody and Sole Physical Custody?
Joint Physical custody means that each of the parents shall have significant periods of time with their child. The time would be shared in such a way to insure that they child has frequent and continuing contact with both parents. Joint Physical Custody does not mean the exact division of time with each parent, but can be based on reasonable time with each parent either specifically spelled out (certain days, weeks, holidays, alternative periods) or based on stated guidelines and shared payment of the cost(s) of raising the child(ren). In making an order for joint physical custody, the court may also specify one parent as the primary caretaker of the child and one home as the primary home for the child. In Sole Physical Custody the child will reside with and be under the supervision of one parent. The other parent may be granted visitation with the child.
How are Custody issues decided?
The best interest of the child(ren) is of primary concern to the court when making any orders regarding the Physical or Legal custody. It is the public policy of the state of California to assure that children have frequent and continuing contact with both parents after the parents have separated, divorced, or ended their relationship, and to encourage parent to share the rights and responsibilities of raising the child(ren) except with the contact would not be in the best interest of the child, such as in situations involving domestic violence.
If the parents are unable to come to an agreement regarding legal and/or physical custody of the child(ren) the court will consider a variety of factors in making an order such as, the age and stage of development of the child(ren), the quality of the parent-child(ren) relationship, the emotional, social, and educational needs of the child(ren) and parental support.
Can Custody orders be changed?
Yes. If the parents cannot mutually agree on a change, one of the parents must file a motion with the court asking for a change. Although both parties may agree to the change, since it is not an order, it is not enforceable.
How will the visitation schedule be decided?
The court will use many determining factors in the deciding visitation schedule; such as, age, gender, and stage of development of the child; emotional, social, and educational needs; health welfare and safety of the child; the level of communication and cooperation between the parents; parenting ability and the psychological adjustment of the parents as well as other factors. It is imperative for the child to have continuous and frequent contact with both parents.
What is Supervised Visitation?
Supervised Visitation is ordered due to special circumstances, when the court feels there is a need to protect a child due to neglect and/ or abuse, family violence, drug or alcohol problems, or even if a child is reconnecting with an absent parent. Visitation is limited to special situations in which a third party or outside agency, monitors said visitations per the courts request.
What do I need to know before I decide to move with my children out of state?
This article is not intended as a complete and thorough dissertation on the law in move away cases. We merely offer this as a tool to those who are considering a move away.
The existing law as stated in In re Marriage of Burgess (1996) 13 Cal. 4th 25 has been confirmed by a new case: In re Marriage of LaMusga (2004) 32 Cal 4th 1072. The current interpretation of LaMusga, is that it supports the findings made in Burgess. Burgess stated that if you are the primary physical parent and you desire to move away with the children, then the burden shifts to the non-moving parent to prove that the move would be detrimental to the child(ren). That law still currently exists. What LaMusga states is that conditional custody orders [i.e., orders that read: “if you move, the court will change custody to the non-moving parent.”] are ok unless the court is attempting to coerce the parent wanting to move into changing their mind, i.e., in order to coerce that parent into deciding not to move. Thus, a custody order, conditional or otherwise, must be based on the factors enumerated in Family Code Section 3011 in determining best interest of the children. In other words, the court would be forced to make an order that remaining with the non-moving parent is truly in the child(ren)'s best interest, in light of all factors. Read more
Child support is the financial assistance paid by a parent for the care and maintenance of the child. The policy of the state of California is that a parent's principal obligation is to support his or her minor child according to the parent's circumstances and station in life and both parents are responsible for the support of their child. The Family Code specifies the general obligation of both parents to support their minor children and a child support award must be commensurate with each parent's ability to pay. The obligation and duty of child support extends to all parents regardless whether they are married or single.
California requires child support to be set based on a uniform statewide guideline. A complex calculation is used to determine the exact amount of child support. The calculation takes into account the percentage of time each parent spends with the child, the income of each parent and multiple other financial circumstances of the parties. Some examples the court will consider as income are wages, salaries, bonuses, commissions, royalties, unemployment insurance benefits, social security benefits, income from the proprietorship of a business and in some circumstances the earning capacity of a parent in lieu of the parents actual income. A computer program is often utilized to calculate the exact figure. Although child support is presumed correct if it is set based on the statutory formula, the parties can still agree to vary from the uniform guideline. Child support can be modified if there is a change of circumstance such as an increase or decrease in one or both parents' income or the percentage of time that the child spends with either parent.
The duty to pay child support will continue as to an unmarried child until the child reaches 18 years old or, if the child is still a full-time high school student, until the child completes 12th grades or reaches the age of 19 years old.
A local child support agency can assist with enforcement, modification and establishment of child support.
Spousal support can be paid by one spouse or registered domestic partner to another after their relationship ends. Spousal support is not automatic and will not be ordered in every case. Spousal support is intended to provide both parties the ability, to the best possible way, to continue to live and maintain the same standard of living that the parties shared during their marital or registered domestic partnership relationship.
The court must weigh and consider multiple factors pursuant to Family Code Section 4320 when making a decision regarding spousal support. Some of the factors include: the marketable skills of the supported party, the current job market for those skills, the time and expense required for the supported party to acquire training or education to develop job skills; the extent which the supported party's present or future earning capacity is impaired by periods of unemployment during the marriage because of time devoted to domestic duties; contributions to the other spouses education, training or career; ability of the supporting party to pay spousal support taking into account their earning capacity, earned and unearned income, assets and standard of living; the needs of each party based on the standard of living established during the marriage; assets and debts of each party; duration of marriage; employability of the supported spouse without interfering with the children's needs; age and health of the parties; history of domestic violence; tax consequences to each party; hardship to either party; the goal that each party become self-supporting; criminal convictions for spousal abuse and any other just and equitable factors.
After weighing the above factors the court may order either spouse or registered domestic partner to pay any amount that is necessary for the other's support and maintenance. The general rule is that spousal support will be paid for one-half the length of the marriage. In a marriage of long duration, a marriage that is over 10 years, support can be paid for much longer than one-half of the length of the marriage. The modern trend is that even in long term marriages people should become self-supporting to eliminate or substantially reduce their need to receive spousal support after one-half the length of the marriage. Spousal support can be modified if there is a change of circumstance such as an increase or decrease in one or both person's income.
Establishing Parental Relationships (Paternity)
What is establishing parentage?
In California establishing parentage is determining who the legal parents of a child are if the parents were not married when the child was born.
Is it important to establish paternity for your children?
- Establishing paternity is necessary before the court can order child support or visitation orders. If parents are not married at the point of a child's conception, paternity is at issue. Paternity can be established by signing a Voluntary Declaration of Paternity form or by filing a civil action to establish paternity and a child support order. Blood tests may be requested to determine whether or not he is the father of the child. There are many good reasons for parents to legally establish the paternity of their child:
- A man's name cannot appear on his child's birth certificate unless paternity has been established.
- A child is entitled to financial support, including child support, social security benefits, veteran's benefits, military allowances, and inheritance, once paternity has been established.
- A child may be entitled to health insurance through his/her father, as well as his/her mother, once paternity has been established.
Mediation allows the parties to work together and not against one another to find the best solution for their family and their individual situation. Rather than allowing a stranger to decide the outcome of a case, in mediation the parties themselves work together to reach the best solution for their family.
During mediation, the attorney will help guide the parties through the divorce, parentage, or custody dispute. The attorney will be impartial and provide a neutral interpretation of the law and the legal process. During the first phase, the attorney will assist in preparing the initial legal documents required. Then the parties and the attorney will meet and review what disagreements exist, the goals of each party, and what each party believes is a fair resolution to the case.
The attorney will provide suggestions and work with the parties to come to an overall agreement which satisfies everyone. Once an agreement is reached, the attorney will prepare the final judgment for the parties to review and sign. The document will then be filed with the Court, resolving the matter.
The attorney will provide insight and interpretations of the law but does not represent either party. The attorney is a neutral third party during this process and does not advocate for one party or the other. The attorney will provide the legal background to assist the parties in reaching their own resolutions. Mediation is not for everyone. The parties must be open to communication with one another. A commitment to full disclosure is required in order for this process to work. Sometimes an agreement cannot be reached and the Court's assistance will be needed. But for those who are willing to work together to resolve their disagreements, this process often turns difficult situations into peaceful solutions tailored to the individual needs of each family.
Mediation is often the most cost effective way to handle a family law matter. The cost of this process is generally shared equally between the parties. The cost can be much less than a typical case because only one attorney is needed rather than two.