California is a “no fault” divorce state where spouses are allowed to cite ‘irreconcilable differences’ as their reason for separating. This means that a divorcing spouse is not required to assign fault or blame on the other spouse in order to dissolve their marriage.
In a divorce, the consent of either party to end the marriage is not necessary. When one spouse decides to dissolve the marriage, the other spouse cannot prevent the divorce by refusing to cooperate or participate in the case. Even without the participation of the other spouse, it is possible to obtain a default judgment for dissolution or divorce.
Preparing for Divorce
If you are contemplating a divorce, it’s important to plan your next steps which must include discussing your legal options with a divorce attorney before taking any concrete action that can affect your family and properties. Obtaining legal advice and planning your next steps can help in managing the stress and overwhelm that ordinarily follows a separation. Your divorce attorney can walk you through the legal process, provide important advice that can help you make informed decisions, and handle the paperwork involved.
Dealing with Issues Arising from Divorce
Separating spouses often disagree on common issues such as:
- Child custody
- Child support
- Spousal support or alimony
- Property division
Spouses are generally encouraged to work out their issues amicably out of court in order to save time and money. Divorce can also be a challenging time emotionally. Entering into a settlement out of court can also help in reducing the negative emotions ordinarily affecting contested divorce cases.
Couples who have decided to end their marriage and have children to take care of are advised to consult a divorce attorney about the possibility of creating a parenting plan that will define the rights and responsibilities of each parent. Separating parents who cannot agree on a parenting arrangement will have to submit their child custody dispute before a family court judge who may award sole custody to either parent and visitation rights to the other or joint custody to both parents.
The judgment for child custody will depend on the circumstances of the situation and the arrangement that promotes the child’s best interest.
There are no hard and fast rules in determining the best interest of the child. The court will consider several factors such as:
- The child’s age
- The child’s health
- Each parent’s ability to care for the child
- The emotional ties between the child and the parents
- The child’s ties to home, school, and their community
- History of substance abuse or of domestic violence
If you have recently separated or have decided to divorce, your divorce attorney can help you work out a parenting agreement or plan with your ex-spouse or fight for your right to obtain either sole or joint custody in court.
It is also possible to discuss child support in connection with the parenting agreement. Again, if parents are unable to agree on their respective financial contribution for the child’s care and upbringing, the family court can order one parent or both parents to provide a fixed monthly amount as child support after considering various factors authorized in the Family Code.
A separating spouse may also ask for spousal support in the divorce proceedings. Spousal support or alimony refers to a fixed monthly amount that one party may be ordered to provide to the other spouse. There are many factors that a family court judge must consider in setting the amount of alimony in the final judgment.
- The duration of the marriage
- The age and health of both spouses
- The standard of living that the couple maintained during the marriage
- The financial and earning capacity of each party
- Any history of domestic violence in the marriage
- Any assistance that one spouse may have provided for the education, training, or career of the other
Community or Separate Property
In California, assets or property that spouses acquire during their marriage belong to them as “community property” while obligations that they incur are considered as “community debt”. As a rule, each spouse owns half of the community property and is responsible for half of the community debt.
A married person may also own separate property which is typically something that one owned before getting married. These include inheritance, gifts, as well as property accumulations such as rent, profits, or other money generated by one’s separate property. Anything that each spouse acquires or earns after the date of separation is also separate property which belongs exclusively to that spouse. This is why the date of separation is an important element of a divorce.
In California, the date of separation need not mean an actual physical separation as it is possible for a married couple to make a decision to separate or divorce but to remain under the same roof in the meantime, whether for financial or co-parenting reasons.
Divorce cases involving high valued assets, numerous properties, and an assortment of real, personal, and intangible assets are often complicated and can be contentious proceedings in court. If you need help in determining the nature of some asset or for working out property distribution, contact your divorce lawyer for advice.
In Irvine, California, the family law attorneys at Landon Law have been representing clients in divorce cases, helping them sort all their legal issues such as child custody and support, spousal support, and property distribution. Our firm is dedicated to each client and we provide personalized and individual attention from the moment our office is called for initial consultation or case evaluation. We work very hard to ensure the best possible outcome for our clients so that they are able to move on and start anew after a divorce.
We also handle other family law cases such as child custody, juvenile dependency, child support, same sex prenuptial agreement, and spousal support. Call us today at (949) 257-5188 or contact us online to discuss your situation with one of our friendly attorneys.