5 Things to discuss with a Divorce Lawyer
Filing for divorce is difficult. That is why we have put together this essential Guide to divorce in California with 5 key topics to discuss with your divorce lawyer.
Residency Requirements and Exceptions
To be eligible to file for divorce (dissolution of marriage) in California, you must be a resident of California for six months and a resident in the county of filing for three months. There is an exception for same-sex couples that were married in California, who may divorce in California no matter where the now live. This also applies to same sex couples that registered domestic partnerships in California. Always give accurate information to your divorce lawyer about where you have been living, to ensure that all residency requirements are properly met.
Grounds for Divorce
California Family Code Section 2310 specifies only two allowable grounds for divorce. These are (1) irreconcilable differences which have caused the irremediable breakdown of the marriage and (2) incurable insanity, which must be proven with reliable medical or psychiatric testimony. California is a “no-fault” state, and the irreconcilable differences grounds need not be proven as part of the divorce. The incurable insanity option is very rarely used.
Division of Property
There are two main ways that courts divide property upon divorce in the United States: equitable distribution and community property. California is a community property state, so the assets acquired during the marriage are split 50-50 between the parties. Separate property remains the property of the individual that owns it, unless it has been “commingled” with community property during the marriage. Property division in California can be complicated, so the services of an experienced divorce lawyer are crucial if you have property of any value.
What used to be called “alimony” is called spousal support in California. When one spouse has much lower earning capacity than the other, the court may order spousal support. Spousal support can be awarded temporarily during the pendency of the divorce, or permanently as part of the final decree. The court will look at many factors such as the standard of living during the marriage, marketable skills, diminution of earning capacity due to unemployment or underemployment caused by domestic of childcare responsibilities. Generally, for marriages of ten years or less, spousal support will be awarded. For longer marriages, the court will not specify a duration, and the burden is on the payor of spousal support to prove it’s no longer necessary. Your divorce lawyer can give you a good idea what you should be receiving or paying for spousal support.
Child Custody and Visitation
When parents cannot make these decisions themselves, California courts will do what’s in the “best interest” of the children. Orders for child custody can be made temporarily, during the pendency of the divorce, or permanent as part of a final decree. The California courts will consider which parent will make the children most available to the other, the history of the family, the children’s’ health and safety, the physical and mental health of the parents, the preferences of children (that are mature enough to express a preference) and evidence of child abuse. An experienced divorce lawyer can help you negotiate a settlement of your child custody and visitation issues.
Child Support in California is based on the incomes of both parents, the amount of children being supported and how much time each parent spends with the children. The court has the power to set aside joint or separate property to fund the support and education of the children of the marriage. Child support can be temporary, during the pendency of the divorce or part of a final decree. Either type of child support award can be modified based on a “change of circumstances,” such as a substantial increase/decrease in income or time with a parent. The change can also be in the needs of the child, such as requiring special medical care of education.