Grounds for a California Divorce

Irreconcilable differences or permanent legal incapacity to make decisions. Since California divorces are not based on fault, a court will not inquire into the reasons why one party wants a divorce.

Residency Requirements

In order to file for dissolution of marriage in California, a party must have resided in the State for a minimum of six (6) months, and in the same California County for a minimum of three (3) months. People who do not meet this requirement, are not eligible to file for divorce in California.

Legal Separation

An alternative when residency requirements are not met. Depending upon the circumstances, a party may opt to file for legal separation until s/he meets the California residency requirement. Marital status is not terminated in a Legal Separation, however, this proceeding can be used to meet the residency requirement in some cases.

Division of Assets

California is a Community Property State. That means that, absent certain exceptions, all property that is acquired or improved during marriage will be divided equally among the parties when the marriage is dissolved. Property that was inherited or acquired before marriage, will continue to be the separate property of the acquiring spouse. The community may be entitled to a credit for value enhancing improvements that were made to a spouse’s separate property while the parties were married. The rules regarding property division, and the exceptions thereto, can get complicated. Division of property can affect your rights in real estate, stock plans, retirement benefits, business ownership interests, and other investments.

Settlement vs. Litigation

Divorce can be an emotionally and financially draining time for all concerned. Thus, it is always in everyone’s best interest to try and negotiate an agreement with regards to major issues such as custody, support, and division of property. If the parties can settle most of the major issues, they can save a great deal of money and emotional energy. They also maintain control over the matter, which is usually better than leaving the final decision to an outsider, such as a Judge.

There are two types of child custody in California: Legal and Physical Custody.

Legal Custody

Legal custody is governed by California Family Code section 3003. It involves the right of the parents to make decisions regarding their children’s health, education and welfare. These decisions include the selection of the children’s doctors, the schools they attend, their religious instruction, their after school activities, and basically, any major decision involving their lives. Generally, both parents are awarded joint legal custody, which means that they both have an equal say in these decisions, even if the children spend the majority of their time with only one of the parents. When there is a showing that one of the spouses is either an unfit parent, or otherwise incapable of making decisions regarding their children’s welfare, the Court may order sole legal custody to one parent. The burden will be on the party who is making the allegations.

Physical Custody

Physical custody refers to the living arrangement of the children and is governed by California Family Code section 3004. Unlike legal custody, it is not uncommon for there to be an unequal division of physical custody. If the children spend an equal amount of time with both parents, then the parents will be deemed to have joint physical custody. If the children spend the majority of their time with one of the parents, that parent will be deemed to have primary physical custody with the other parent having visitation rights.

Modification of Custody Orders

Court ordered custody arrangements may always be modified by a showing of changed circumstances. Examples of changed circumstance include a change in a parents work schedule, a change in jobs, obligations to a new family, and relocation. A Court will modify an order based on the children’s best interest.

Move Away Cases

It is not uncommon for parties to relocate outside of California for job opportunities or personal reasons. Parents always have the presumptive right to relocate to another geographical location the question is whether it is in the children’s best interest to relocate with the move away parent. Under recent case law, the non-custodial parent now has the right to challenge that decision, and to make a showing that relocation is not in the children’s best interest. The burden is on the non-custodial parent to show that relocation would constitute a significant determent to the children. Judges have the widest possible discretion to determine if the children will be allowed to move away based on several factors: 1) the age of the children, 2) their relationship with both parents, 3) the reason for the move, 4) the distance of the move, 5) the extent to which both parents have been cooperative with one another, and, 6) the children’s preference, depending upon their age.

Paternity Actions

Paternity Actions are filed in situations where parties who are parents together, never married, and one of the parents is seeking support, custody, or a determination of parentage. Either party, the mother or the father, may file a Petition to Establish Paternity. Paternity can be established with a DNA testing or statutory presumptions of paternity, for example when a father has taken a child into his home and has held the child out as his own for a certain period of time or where the father signs a voluntary declaration of paternity then there is a presumption that he is the father.

Child Support

Child support orders are based on two primary factors: 1) the income of both parties, and, 2)  the amount of time each party spends with the children. Generally, the non-custodial parent, or the parent whose income is the highest, pays support to the other parent for the time period that the children are not in his or her custody.

The calculation of child support is based on a complicated algebraic formula, which is beyond the expertise of most attorneys. Thus, there are computer programs used by attorneys, known as the DissoMaster or Norton SupportTax or the Child Support Calculator used by the Department of Child Support Services which are designed to make this calculation. There are other factors used for example: one party has demonstrated hardships, or where there are statutory allowed “add-ons”.

Both parties have a statutory obligation to support their children until they reach 18 years of age or 19 years old, if the children have not yet graduated high school, and they are attending school full time. In those situations, the obligation ends once the child reaches 19 years of age, or graduates high school, whichever happens first.

Modification of Child Support Orders

Child support orders are always modifiable upon a showing of a change in circumstances. The custodial parent may seek an increase in support payments upon a showing that the non-custodial parent had a pay raise. On the other hand, the non-custodial parent may seek a decrease in court ordered child support payments upon a showing that s/he lost a job, had a decrease in pay, became disabled and unable to work, or other compelling circumstances.  In order to have court ordered support payments modified, the requesting party must go to court and request a change. The change is not automatic, a Request for Order to modify must be filed. The court may make the modification retroactive to the date of filing the modification.

Spousal Support / Alimony

In addition to child support, a California court may order that one spouse pay support to the other, both during the dissolution proceeding in order to maintain the status quo, and after the final judgment of dissolution has been entered. The duration of court ordered spousal support will depend upon the length of the marriage. Generally, if the parties have been married for less than ten (10) years, support will be ordered for one-half (½) the length of the marriage. If the parties have been married for more than ten (10) years, the court does not have jurisdiction to terminate support and may order permanent support, this is very fact dependent. Spousal support is governed by Family Code Section 4320. Thus, when ordering permanent support, a judge will look at the factors set forth in that section. These include, the standard of living during marriage, the income of both parties, the length of the marriage, the age of the parties, their health, their earning capacity, education, job skills, their assets and liabilities, and the ability of the non-earner spouse to obtain the skills necessary to become self-sufficient. As in situations involving child support, the calculation of temporary spousal support is determined by the DissoMaster, which is a computer program used by attorneys to calculate support payments based on California guidelines. However, unlike child support, the parties may agree amongst themselves to waive spousal support and the Court cannot use a computer calculation in permanent spousal support. The Internal Revenue Code provides that spousal support payments are taxable as ordinary income of the payee spouse, and are deductible by the payor spouse. In order to take advantage of the tax benefits, it is important for the parties to have enforceable court orders in place prior to January 21, 2019.

Prenuptial and Postnuptial

The state of California has found prenuptial, postnuptial, and cohabitation agreements to be considerably significant when both parties assent to such agreements. Commonly referred to as a “prenup,” a prenuptial agreement is a contract entered into prior to the commencement of the marriage or civil union. The most common substantive provisions include how to divide the property of the parties in the event of dissolution, spousal support, and may also include conditional provisions in the event of adultery, death, or other circumstances. Postnuptial agreements are similar in form and substance, but the difference is that the contract is formed after the parties enter into a marriage or union.

Mediation

Resolving Family Disputes through Mediation is a very common form of alternative dispute resolution in divorce cases. It is considered to be an effective means of resolving any type of dispute that does not require a third-party determination or a judicial ruling. That is one of the main reasons it is used for family law mediation issues in divorce cases. The mediator is not a judge and cannot force one party or the other to do anything different. Instead, the mediator is a neutral third party who is able to help the two disagreeing parties negotiate a settlement they can agree on.

Mediation has a structure, a timetable and an element of participation that is not seen in traditional negotiation. Mediators often use a number of techniques to improve the dialogue between disputants, with the goal of helping the parties reach an agreement that works for everyone. Success depends on the skill and training of the mediator, who must remain impartial.

Whether you are planning to litigate, negotiate or enter divorce mediation, England Law can only benefit you and your case in preparing documents and providing legal advice.