Marital Dissolution or Divorce
Marital dissolution (or divorce) is the termination of a marriage by a court order or agreement. Upon finalization of a divorce, both spouses are considered to be single and assets and income of each spouse are considered to be their separate property. The divorce process may include the division of assets and debts acquired during the marriage, spousal support, and child custody, visitation, and support.
Q. Is a marital dissolution the same thing as a divorce?
A. Yes. Marital dissolution is the legal term for divorce. Parties who wish to become divorced must file a Petition for Dissolution of their marriage with the court.
Q. What is the difference between a divorce and a legal separation?
A. When a divorce is finalized, the parties are considered single, and can remarry. When a legal separation is finalized, the parties still remain married to each other and may not marry another individual.
Q. What happens if my husband or wife files for divorce and I don’t want to get divorced?
A. In California, one spouse may file for divorce without a specific reason or the consent of the other spouse. If a married person wants to end their marriage, that person can do so, even if the other spouse does not agree.
Q. My wife filed a Petition for Dissolution, do I have to respond?
A. Failure to respond to a Petition for Dissolution will not stop the court from granting the request for a divorce. The court may also enter orders regarding assets, liabilities, spousal support, and child custody, visitation and support without the absent parties’ input. This is commonly referred to as a default judgment. It is beneficial to a party to actively participate in the divorce process.
Q. How long do I need to live in California before I can file for divorce in California?
A. In order to file for divorce in California, at least one spouse must reside in the state for six months and must be a resident of the county where the Petition for Dissolution was filed for at least three months immediately preceding the filing of the petition.
Q. How long do I have to wait before my divorce is final?
A. The court may enter a judgment terminating the marital relationship and returning the parties to the status of single persons once six months have passed since the date that the initial Summons and Petition for Dissolution was served. There are several requirements that must be met before a court will finalize a divorce.
Q. Is there a requirement for how long I need to live in California before I can be legally separated?
A. No. There is no residency requirement for filing a Petition for Legal Separation.
Q. What is an Annulment (or Nullity)?
A. An Annulment is different than a divorce. An Annulment voids a marriage, treating it as if the marriage never occurred. Annulments are rare and are only granted if it is determined that the marriage was not legal.
Q. How can I have my marriage Annulled?
A. In order to have a marriage Annulled, a party must establish that the marriage was invalid. A marriage is void or voidable and may be annulled for a variety of reasons including but not limited to: one party being a minor, specific kinds of fraud, and lack of capacity or consent. Property/Characterization and Division California is a community property state. This means that all property acquired during the marriage is presumed to be part of the marital estate and is to be equally divided at the time of divorce or legal separation. This principle applies to all assets, ranging from homes to furniture to savings accounts to retirement funds. There are, however, exceptions to the community property presumption or rule. Property that is inherited, received as a gift, or that can be traced to property owned prior to the date of marriage or after the date of separation is separate property. In addition, the characterization of property may be affected by a prenuptial agreement or other signed agreements during the marriage. The experienced family law attorneys at Viola Law firm will be able to assist you in determining the character of your property.
Q. My spouse has been with the same company since before our marriage. Am I entitled to his pension?
A. Contributions to a pension or other retirement account benefit made during marriage are community property and are equally divided at the time of divorce. Contributions to a pension or other retirement account made prior to marriage or after separation are considered the separate property of the contributing spouse.
Q. My spouse and I purchased a house in another state during our marriage. Is our house located out-of-state part of our dissolution proceedings if it was acquired when we did not live in California?
A. A house purchased during the marriage in another state is considered quasi-community property and the general community property presumptions apply. Quasi-community property is defined as “all real or personal property, wherever situated, acquired by either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in California at the time of its acquisition.” A house purchased in another state during the marriage is treated the same as a house purchased in California for purposes of characterization and division. This rule does not prohibit one spouse from claiming a separate property interest or right of reimbursement in the asset.
Q. My spouse was laid off while we were still married and received severance pay. The severance pay was deposited into my spouse’s separate bank account. Do I have a claim to the severance pay?
A. Unless there is a pre-marital agreement which alters the character of earnings, all wages, commissions, bonuses and other payments from employment during the marriage are community property.
Q. My spouse was granted stock options during our marriage but they have not vested. Are the stock options community property ?
A. Even if stock options have not vested as of the date of separation, there may be a community property interest to which each spouse is entitled. There are several ways that the community interest in those stock options can be determined. This is an extremely complicated area of the law. Please contact us in order to discuss the facts of your case.
Q. Am I required to sell the house we bought during the marriage?
A. Although each party is entitled to one-half of the marital property, it is not true that all of the assets have to be sold and the sales proceeds equally divided. In fact, it is usually more efficient and cost-effective to divide the community property in a way that keeps as many assets intact as possible. For example, if one party wants to keep the family residence, the other party’s interest in the residence can be offset by receiving a larger share of the stock portfolio or retirement accounts.
Q. My spouse incurred thousands of dollars of credit card debt. Am I responsible for any of it?
A. The community property presumption generally applies to debts in the same way it applies to assets: all debts accrued during the marriage are community debts for which each party is equally responsible, regardless of whether the credit card is in your name, your spouse’s name or both names. Of course, there are some exceptions to this rule. Debts incurred by one spouse without the knowledge and consent of the other and not for the benefit of the community can be allocated to just one spouse as his or her separate debt.
Q. According to our divorce judgment, my ex-spouse is liable for most of the credit card debt we incurred during our marriage. My ex-spouse has now filed for bankruptcy. Will that affect me?
A. If you are a co-signer on a debt, the creditor can demand payment for the debt from you, even if your divorce judgment says that your ex-spouse is liable. It is possible that the terms of your judgment require your ex-spouse to reimburse you for amounts paid to creditors for debts that were assigned to him or her. Depending on the language of your final divorce judgment, it is also possible that your ex-spouse may not be able to discharge the assigned debts through bankruptcy. The answer to this specific question depends on the details of your case. Support A court may order child support, spousal support or family support depending on the circumstances of the parties. Child support is a payment by one parent to the other parent for the support of their children. The purpose of child support is to allow children to live at the same standard of living as both of their parents. Spousal support is a payment by one spouse to the other spouse upon filing of a divorce or legal separation. The duration of spousal support is largely dependent on the length of the marriage and each person’s ability to financially support him or herself. A court may make temporary and/or permanent spousal support orders depending on the circumstances of the parties. Family support is a payment by one parent or spouse to the other parent or spouse when both child and spousal support are at issue. A family support order designates an unallocated amount of support for child and spousal support. Family support orders are generally made for purposes of maximizing tax benefits.
Q. How is child support calculated?
A. In California, the state has established a formula to calculate child support called “guideline child support”. Generally, the amount of support to be paid by one parent to the other is based on each parent’s income and the amount of time they spend with their child(ren). Guideline support is calculated using the assistance of a computer software program. When determining a parent’s income, the court will look to earned income from employment as well as rental income, dividends and interest received. There are many other variables that are considered in a determination of child support.
Q. I have lost my job, can I ask for more child support?
A. A child support order or agreement may be modified when either parties’ circumstance changes. For example, support may be modified if either parent’s financial situation changes or the amount of time the child(ren) spend(s) with each parent changes, or any other unexpected changes occur. If it has been determined that there has been a change in circumstances, the court may modify child support. Parents may also agree to change support as long as their agreement is consistent with the legal guidelines and the modification is in the best interests of the child(ren).
Q. How long do I have to pay child support to my ex-spouse?
A. Parents must provide for their children until each child reaches the age of 19, or is 18 and is no longer attending high school, whichever is earlier. Child support also terminates upon the death of the child, if the child goes on active duty in the armed forces, if the child marries, or if the child becomes legally emancipated.
Q. What is the difference between temporary spousal support and permanent spousal support?
A. Temporary spousal support is generally calculated using a guideline formula that has been established by the state of California. This formula is not binding. The court may modify the guideline calculation based on unusual circumstances. When calculating temporary spousal support, the objective of the court is to order an amount that allows the parties to maintain their pre-separation standard of living. The court takes into consideration at least 14 different factors when ordering permanent spousal support. The purpose of permanent spousal support is to provide assistance to one party based on the marital standard of living and the circumstances that exist after the dissolution is completed and all of the marital assets and debts have been divided.
Q. For purposes of calculating support, how is my income determined if I am self-employed?
A. A courts determination of self-employment income is complicated. An evaluation of a variety of factors will be completed by the court in determining a parties’ actual income available for support. The type of business and form of payment, among other factors may be examined during this process.
Q. How does the court calculate support if I am disabled or unemployed?
A. When calculating support, the court examines all monthly income received. If a party receives disability payments or unemployment benefits, support will be calculated by including those payments. As well, if a parent is only partially disabled yet unemployed, the court may impute income for the purpose of making a support order.
Q. If I spend more time with my child, does my child support obligation increase or decrease?
A. It depends. Child support is calculated based on a party's income and the amount of time that they spend with their child(ren). Generally, the more time that a party spends with their child(ren), the less child support they are obligated to pay under the California guideline. This decrease in child support occurs because parents provide financial support while their children are in their care. When one parent earns significantly more than the other, an increase in visitation time may or may not decrease the support obligation.
Q. Is the income of my new spouse considered when calculating support?
A. No. Although the court may consider new spouse income for the effect it has on your taxable income, new spouse income will not be considered as income to the person required to pay or receiving support. Child Custody/Visitation When making orders regarding custody and visitation, the court’s paramount inquiry is what is in the best interests of the children. In California, there is a presumption that the best interests of children are served by frequent and continuing contact with both parents. However, the court takes into consideration all of the facts of each case in determining the appropriate custody arrangement and timeshare schedule.
Q. How are issues of child custody and visitation decided?
A. Since the court recognizes that parents are usually in a better position than a judge to determine a schedule best for their children, California has a policy that encourages parents to come to a mutually acceptable custody arrangement that meets their children’s needs, whenever possible. This agreement is commonly called a “parenting plan”. If, however, parents cannot agree to a parenting plan, the court will consider both parents’ positions and arguments, and will make a custody decision that the court determines is in the children’s best interests. California law requires that parents attend mediation with a court-appointed mediator before the court will make custody orders, except in true emergencies. Sometimes, the court will order the family be evaluated by a psychotherapist or psychologist, who will make custody recommendations to the court.
Q. Now that my husband and I are divorcing, I can no longer afford to stay in the Bay Area. Can I move to another state with our children?
A. A party’s ability to “move-away” with the children is one of the more complicated areas of custody and visitation. If no agreement between the parties can be reached, the court will determine custody and visitation orders that are in the best interests of the children. In making this determination, the court will consider who the primary caretaker of the children is, the reasons for the move, the children’s relationship with the non-moving party, the impact the move would have on the non-moving party’s relationship with the children, and a number of other factors. Each case is unique and there is no “bright line” test to predict the outcome of every request for a move-away order.
Q. After my husband and I separated, he moved out-of-state and left me and the children in California (where we resided throughout our marriage). He recently filed a motion for custody and visitation in another state. Is there anything I can do to keep this matter in California?
A. The state that has jurisdiction (the authority to hear matters and issue orders) regarding custody and visitation is the “home state.” The “home state” is the place where the children primarily resided for at least six consecutive months prior to the initial custody proceedings.
Q. My spouse was physically abusive during our marriage. Will that impact the custody orders?
A. When it is shown that one party has committed domestic violence against the other party or their children within the past five years, there is a presumption that it is detrimental to the children for the perpetrator to have either sole or joint physical or legal custody. In other words, the non-violent spouse will likely have sole custody unless the person who is deemed to have committed the violence can demonstrate that it is in the children’s best interests to have joint custody. Alternative Dispute Resolution In California, parties wishing to reduce conflict and work together toward a mutually agreeable solution to their family disputes may take advantage of several types of alternative dispute resolution (ADR), including, mediation, private judging and collaborative law.
Q. What is mediation?
A. Mediation is a form of ADR that assists people in reaching an agreement or settlement. The participants in mediation determine the conditions of the mediation and the terms of their agreements. It is a mediator's role, as a neutral third party, to facilitate negotiation. It's important that both parties participating in mediation be willing to share all information required to make informed decisions. Generally, all participants must agree to utilize the mediation process. The one exception is when parents are unable to come to an agreement regarding child custody and visitation. In that case, California law requires the parties to attend court-facilitated mediation.
Q. If I pursue mediation, do I waive my right to consult a lawyer?
A. No. Most qualified mediators encourage (and sometimes require) clients to retain independent counsel to consult during the mediation process and review any agreements reached. In some cases the attorneys participate with the clients in the mediation sessions.
Q. I have asked my spouse or partner to agree to attend mediation but they refuse. Can I obtain an order from the court forcing them to participate in mediation?
A. No. Other than court-ordered mediation regarding child custody issues, mediation is voluntary. A court does not have the ability to order parties to attend mediation. However, the court may order the parties to participate in co-parent counseling.
Q. What is Private Judging?
A. Parties to a family law matter may decide to utilize a private family law specialist as a judge instead of the judge assigned through the public court. Utilizing a private judge allows the parties to select an individual whose qualifications fit the issues relating to their particular case. As with mediation, the court does not have the ability to order parties to participate in private judging.
Q. What is Collaborative Law or Negotiation?
A. Collaborative negotiation is another form of ADR. It is a joint effort by the parties and their respective attorneys to work out their issues. Since collaborative law is designed solely for the purpose of settlement negotiation, neither attorney involved may represent a client in court. The collaborative negotiation process is very similar to mediation with many of the same benefits (particularly saving both parties time and attorney's fees). As with mediation and private judging, the court does not have the ability to order parties to negotiate through the collaborative process.
Q. If the collaborative negotiation does not to work for either party, may he or she unilaterally terminate their participation in the collaborative process?
A. Yes. If either party decides that they no longer want to participate in collaborative negotiation they may terminate participation in the collaborative process and proceed along the more traditional path of individual representation and court intervention.
