Divorce can be a long, stressful and complicated experience. There are many steps in the process that seem like they were designed to cause tension, despair and headaches. Terms like “community property,” “spousal support,” and “joint custody” can overwhelm even the calmest individual. With emotions running high, it can be difficult to think clearly and make the best decisions to safeguard your financial future. If children came out of your marriage, there is another whole set of concerns to consider and important choices to be made. There are seemingly endless decisions to be made and it can feel impossible to figure out where to start.
Divorce and its surrounding issues are very sensitive topics that require support from a compassionate, experienced family law attorney. Fortunately, the Ventura divorce attorneys of The Law Offices of Bamieh & De Smeth, PLC have decades of experience representing individuals seeking a divorce in California. Our attorneys know how important this process is to you and your family, so we provide a confidential legal consultation, completely free of charge. Contact us at (805) 643-5555 as soon as possible for peace of mind and the clarity and confidence needed to tackle your family law issues.
Filing for Divorce
The first step in any divorce proceeding is filing the complaint. The complaint is a petition to the California court expressing the spouse’s (or petitioner’s) desire to end the marriage. Filing the complaint signifies the initiation of the divorce process. This document will generally contain:
- basic identifying information of the spouses;
- the date and place of the marriage;
- an identification of children of the marriage;
- an acknowledgment that the petitioner and his/her spouse have lived in the state or country for a certain amount of time prior to filing the petition;
- a declaration or request as to how the petitioner would like to settle finances, property division, child custody, visitation and other issues related to divorce; and
- the grounds for divorce.
What is a Ground for Divorce in California?
California was the first state to implement the concept of no-fault divorce. Prior to 1970, a spouse was required to list a fault-based reason for seeking a divorce, such as adultery, abuse or abandonment (among others) on the complaint. Under no-fault divorce, neither spouse has to accuse the other of marital misconduct. Instead, California legislature provides two choices for grounds for divorce: (1) irreconcilable differences, which have caused the irremediable breakdown of the marriage; or (2) incurable insanity.
A divorce petition may also request that a temporary order be put in place on certain family and financial issues while the divorce process is ongoing. These include issues like which spouse will have primary physical custody of the children, payment of child or spousal support, and which spouse will live in the couple’s primary residence. If approved, these orders will stay in effect until the divorce is finalized.
Divorce is governed by state law, so the petition must be filed in the appropriate California district court. After the initiating spouse files the petition, it will be served (legally delivered) on the other spouse.
Division of Assets
Once the legal proceedings have been initiated, attorneys will begin the discovery process to determine each spouse’s list of separate and marital assets. These assets will be listed in a document called the Preliminary Declaration of Disclosure. You and your spouse will be required to exchange income and expense declarations as part of this disclosure.
The next big topic to tackle is the division of assets. Depending on your state, this process can follow the principles for equitable distribution or the guidelines for community property states.
Equitable Distribution vs. Community Property
Equitable distribution is the division of property and debt obligations used by courts when dividing marital property during a divorce. For the sake of clarity, equitable in this instance does not mean “equal”—it means “fair.” California is among a minority of states that does not follow the principles of equitable distribution. Rather, California is a community property state and follows an entirely different methodology for dividing marital property.
What is Considered Community Property?
In a community property state, spouses are deemed to equally own all income and assets earned or acquired during the marriage. Each spouse is regarded as equally owning all money and property earned by either spouse during the marriage. It doesn’t matter if the property is only titled in one spouse’s name; the other spouse still enjoys an equal one half interest. Additionally, each spouse is deemed to equally own all debts incurred during the marriage.
What is Excluded from Community Property?
Separate property still exists in community states, despite the designation. Gifts given to one spouse, property either spouse owned before the marriage and kept separate during the marriage, and inheritances are all considered separate property in California. Your spouse won’t have any right to a share of these items during the distribution of assets in your divorce.
Alimony, modernly called “spousal support,” is often a contentious subject in the divorce process. It can also be a confusing subject due to outdated notions held by California residents. It’s important to be familiar with the types of spousal support that are available and when each one is applicable.
What is Alimony Pendente Lite (APL)?
Alimony pendente lite (or alimony pending the litigation) is a temporary form of support awarded to a spouse while awaiting litigation. Generally, a spouse will be awarded APL if they can demonstrate a need for maintenance and professional services during the pendency of the proceedings. The purpose of APL is to provide the dependent spouse with funding to prosecute or defend the divorce case. Once the divorce action is resolved, the APL will automatically terminate.
When Will a Judge Order Permanent Spousal Support?
A judge will weigh many factors when determining whether to award permanent (i.e., long term) spousal support. Under California law, permanent spousal support will typically only be ordered if the marriage lasted for 10 years or more. If a marriage is not long-term, the time period for spousal support should not exceed the length of half of the marriage. Once a judge has decided to order alimony, he must weigh 14 factors to determine the amount. We won’t list them all here, but the following are some you’re likely to discuss:
- the age and health of the parties;
- the duration of the marriage;
- the earning capacity and marketable skills of the supported party;
- the extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party; and
- the needs of each party based on the standard of living established during the marriage.
Child Custody & Support
Child support and custody are among the most emotional issues to be decided as part of a divorce proceeding. While there are many guidelines for a judge to follow, he is free to break away from them if it is found to be in the best interest of the child to do so.
How Does a Judge Determine Child Custody?
The numerous factors for determining child custody typically fall into four broad guidelines. These include:
- the health and safety of the child and parents;
- the child’s preference;
- the ability of the parents to effectively co-parent; and
- continuity and stability with regard to the child’s routine.
Judges generally feel that children thrive best on a routine and prefer to keep as much of the child’s life the same to the extent possible under the circumstances. This includes maintaining established patterns of care and protecting emotional bonds with the parent who has served as primary caretaker. In some cases, a judge will also attempt to keep siblings together.
How Does a Judge Determine Child Support?
Child support for California residents is calculated using according to a numerical formula. First, the court will arrive at your “disposable income” by subtracting any necessary deductions from your gross income. Once this has been calculated, the court will determine your timeshare. In California, timeshare is the amount of hours per year that a parent has primary responsibility for the child. Your disposable income, timeshare, and several other variables will be plugged into a complicated mathematical formula to calculate your support payment.
Parties to a divorce may in fact agree on how to decide all of these issues. In that event, the parties will simply sign a Marital Settlement Agreement detailing all the stipulations of their divorce. If the case went to trial, the court will of course maintain a record of all the findings reached. Next, one of the attorneys will prepare a Judgment of Dissolution of Marriage. This is the document that contains all of the court’s orders. The judgment will be filed and the court will mail a Notice of Entry of Judgment to each attorney.
Divorce Timelines: Do I Qualify for a “Simple Divorce?”
California imposes a six-month waiting period, beginning on the date you serve your spouse with your papers, not necessarily when you file your petition. After completing all of the necessary steps to resolve your issues and filing your divorce judgment, it will take approximately six weeks to receive your final divorce decree.
A “simple divorce” (or “summary dissolution”) is a way to fast-track your divorce timeline. Unfortunately, it’s only available in limited circumstances. If you and your spouse had no children, relatively few assets and debts, and a marriage or partnership that lasted five years or less, you may want to look into a simple divorce. A summary dissolution can provide you with a much quicker, simpler divorce.
Contact an Experienced California Divorce Attorney Today
When it comes to the divorce process, there are often more questions than answers. Successfully navigating all the steps in a California divorce requires help from an experienced family law attorney. The California family law attorneys of the Law Offices of Bamieh & De Smeth, PLC are here to explain your rights, protect your assets and make sure your divorce is handled in the most efficient way possible. Contact us at (805) 643-5555 as soon as possible to schedule a completely free and confidential consultation.