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Family Law, Divorce Laws for California

Filing Requirements; (Residency): To file for a dissolution of marriage (divorce) in California, residency requirements are essential in order to make sure the court has jurisdiction over your case. Courts cannot rule/ hear on your case without proper jurisdiction; hence, your case will be dismissed if the subsequent requirements are not met.

First, one of the parties must have been a resident of California for a minimum of six months and a resident of the County that will hear the case for three months in order  for a judge to rule on your dissolution of marriage (divorce).

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

Filing Arguments: The Divorce Petition must communicate the correct California arguments upon which the divorce is being sought after. The appropriate lawful position will be one the parties concur on and can prove, or one that the petitioner can establish to the court.

Grounds for the Divorce are as follows:

The conclusion of a judgment of divorce is to re-establish both parties to an unmarried status when the final court’s decision is decided.

Break up of the union, (divorce) or legal separation of wife and husband may be recognized on the following facts offered to the court: (a) Irreconcilable differences. (b) Terminal insanity (not curable).

Furthermore, facts brought before the court, which are noteworthy will also aid in the granting of the divorce.

Marriages maybe terminated on the recognized proof of incurable insanity. This also consist of experienced medical and/or psychiatric evidence.

No relieves of spouses responsibilities for spousal support from a court’s decision for divorce based on incurable insanity (California Code - Sections: 2310)

The Petitioner also known as the party filing the procedure with the family law divorce court.

The Respondent also known as the party that is served with the divorce papers.

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

Main documents required in California to commence and terminate your legal divorce/separation in California may deal with all or any of the following documents.

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

California is a 50/50 community property state. In other words all assets/property that was acquired throughout the marriage will be divided  50/50 by the court if the parties are unable to be in agreement on the division of the property.

What is Property division during a legal separation or divorce? It is viewed as community property; hence, the assets/property fall within any of the following categories:

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

Can I invalidate the common community property?
Yes, but proof needs to be presented:

Evidence that the parties entered into a written agreement, stating the property is separate and not joint.

An unambiguous declaration in the deed or additional document verifying the assets were obtained as separate property and not community assets.

At times the court may give the property of the community estate to one party in order to obtain an equal distribution of the estate. Moreover, to counterbalance, the court may award  a party's share if it is deemed that there has been a intentional misappropriation by one party to the leaving out the interest of the other party in the community estate.

How does the Court view Debts acquired by both parties after the date of separation, but before the court’s final ruling on the divorce?

The party that acquired the expenses shall be accountable if the expenses were of a non-essential necessity; consequently, the debt may not be offset by the court.

Common expenses for the ordinary basics of life shall be established and will be subject to the parties' individual needs and means to pay at the time the debt is acquired

What about spousal support?

This will depend on the duration of marriage, the financial circumstances of both parties. The amount of time required for the party to get back on their feet. This judgment can be set to favor either party; this decision is typically the discretion of the judge, which they tend to treat this on a case-by-case. Some judges have the reputation of giving preferential treatment to a particular gender or base their decision on the earning power of the spouses. Your attorney should be familiar with the judge’s precedent rulings. Judges are also creatures of habit; consequently, their past rulings are usually a good measuring stick.

What does the judge consider before granting spousal support?

The earning capacity of each party necessary to maintain their level of comfort

The abilities of the supported spouse; the earning potential for those abilities. A timeline for the party to developed or polish their skills. This may include returning to school and seeking new skills in order to market themselves in the work force.

The time expended by the supported party while dealing with domestic responsibilities that may have diluted their earning potential. For instance, staying home for several years raising children may be put one out of touch with new technology and procedures within the work force.

Sacrifices made by the supported party in order for the supporting party to realize their career goals. For instance, a spouse cocktailing tables at a bar while the other attends medical school or law school.

The skills of the financially stabled party to provide spousal support; this may also comprise of future income, assets and standard of living

The standard of living recognizable throughout the marriage

Assets and responsibilities of each party

Length of the marriage

The supported party ability to take on  employment without greatly interfering with the welfare of dependent children

The age and health of the parties

The domestic violence history, among the parties, for instance… any form of domestic violence initiated from the supporting party.

The tax status of the parties

Each spouse’s hardships  

The court seeks to have the supported spouse self-sufficient within a realistic time. Marriages of extended duration are taken into greater importance.

Criminal conviction may be foundations for eliminating or reducing spousal support.

Your Child’s custody decided in court in the following manner …

The California courts attempt to maintain the best interest of the children while making their decisions as to who shall be awarded custody. At times, the court may appoint an attorney for the children. The attorney for the children are know  as “minor’s counsel”. Attorney Yanez is a court appointed minor’s counsel for Orange County, California. Attorney Bettina Yanez represents the children the court senses need legal representation. Minor’s counsel, Bettina Yanez  will interview all essential parties and formulate a recommendation to the court as to who will present the best welfare for the children. The court will then set up the custody order at its will.

Additional determinations in the best interest of the children include the health, overall safety; welfare of the children.

Abuse history of by either parent

Other parents

The parents percentage of contact with either children

Alcohol abuse or illegal use of drugs by either parent.

Child Support, are my children entitled?

Child support in California is calculated on a computer program made available to courts and attorneys.

Certain factors are entered into the software program in order to establish the child monthly support. Information such as income and percentage of time spent with the children is entered.

Income is corroborated using present and prior w-2’s and  income and expense forms.

California’s uniform guidelines stick to:

The parent's responsibility to support their minor children

Accountability falls on both parents for the well being of the children

Parent's exact income and degree of accountability for the children is taken into account

Portion of child’s support is expected based on parents capacity to pay.

The children are the foremost priority

Level of affluence of both spouses should be shared by the children

The guidelines tries to find  realistic and effective solutions to disagreements between parents and seeks for ways to avoid litigation

Sometimes particular situations crop up and the support falls short of the guidelines placed by the formula. This is where you need an experience knowledgeable attorney to argue and submit the facts before the court.

Guidelines for California are understood to be consistent in all cases

Orders for child support are put into practice to guarantee that children acquire appropriate, and sufficient support reflecting California’s high living standards

 

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For more family law information, please visit... Divorce lawyer 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. We are also associated with a FAMILY LAWYER ORANGE COUNTY site that provides discounts for military families. We are Orange County Family Law Lawyers serving your communities since 2000.

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