Divorce Litigation

Divorce Litigation

lawThere are two grounds for divorce in California, 1) irreconcilable differences and 2) permanent legal incapacity to make decisions (formerly known as incurable insanity).  There is a six month waiting period before the divorce becomes final and the parties are restored to the status of being single persons. The six month period begins once the Petition for Dissolution has been filed with the court and served on the other party.

A divorce can take much longer than six months to complete. If a divorce is fully litigated, it can frequently take more than a year to get to trial. However, if the parties can come to an agreement on all issues, all steps necessary to complete the divorce can be accomplished very quickly. It is not unusual to complete a divorce within two or three weeks when both parties cooperate, are reasonable in their settlement expectations, and are diligent in providing the attorney with the information and documents that are needed to complete the disclosure forms and draft the marital settlement agreement. In some instances, when a couple comes to our office and are already in agreement on most or all issues, we have completed all of the paperwork necessary to process the divorce within a matter of a few days.

Legal separation: Many clients want to understand the difference between a divorce and a legal separation. The difference is that, after a legal separation, you are still married. The divorce process and the legal separation process are essentially the same. The same court forms are filled out for a legal separation as a divorce. The same court appearances are made. The same custody and support orders are made. In a legal separation, the court divides your property and your debts, just like the court does in a divorce.

The three most common reasons clients file for legal separation, rather than divorce, are the following: 1.) Residency. You have to be a resident of California for six months before you are eligible to file for divorce. There is no residency requirement for filing a petition for legal separation. A client that wants a divorce, but has not been a resident of California for six months, can file for a legal separation. Once they have met the six month residency requirement, we will convert the legal separation proceeding into a divorce proceeding. 2.) Health insurance coverage. If you have health insurance coverage through your spouse’s employer, once you are divorced and your marital status is terminated, you will no longer be eligible to be covered through your former spouse’s employment. However, if you obtain a judgment of legal separation, as opposed to a divorce, some health insurance plans (not many) will allow you to continue to be covered through your spouse’s employment. 3.) Religious beliefs. Some religions do not recognize divorce. In this scenario, the client has no intention of ever getting remarried, but cannot continue to live with their spouse.

If you obtain a judgment of legal separation, but later decide to divorce, the law requires that a new petition be filed with the court. The only issue to be decided in this new proceeding will be the termination of marital status.

A proceeding for a legal separation should not be confused with “date of separation”. These are very different concepts. The “date of separation” is the date on which at least one spouse decides the marriage is finally over and communicates that decision to the other spouse. In addition, after the decision is made and communicated to the other spouse, the parties must conduct themselves as if the marriage is in fact truly over. If you tell your spouse you want a divorce, but then continue to have sexual relations, see a marriage counselor, and go to social events together, then you have not reached “date of separation”.
The “date of separation” is very important. All money earned by a spouse after the date of separation is their separate property. All debts incurred by a spouse after the date of separation are their separate debts.

Annulment: There are two types of nullity proceedings, one for “void” marriages and one for “voidable” marriages. Two kinds of marriages that are “void” from the very beginning and will always be invalid. An incestuous marriage is always void and a bigamous marriage is always void. Then, there are marriages that are valid, but are “voidable”. There are six types of “voidable” marriages: 1) one party is underage at the time of the marriage; 2) a party was of unsound mind at the time of the marriage; 3) a party, at the time of the marriage, was physically incapable of entering into the marital state (i.e., having sexual relations), and that incapacity continues; 4) a party was forced into the marriage; 5) a party’s consent to entering into the marriage was obtained by fraud; or 6) at the time one party entered into a second marriage, they reasonably believed their prior spouse was deceased, but it subsequently turns out that the prior spouse is not deceased. The vast majority of nullity proceedings are based upon an allegation of fraud in which one party contends that, prior to the marriage, a factual misrepresentation was made to them by the other party that goes to the heart of the marital relationship.

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Child Support: In California child support is paid until a child turns 18 years old. If a child turns 18 years old and is still a full-time high school student, then child support is still paid until the child graduates from high school. However, if a child has not graduated from high school by their 19th birthday, then child support ends. Child support is not taxable income to the recipient and is not tax deductable by the payor.

Child support is determined by complex formulas that are set forth in the California Family Code. The child support formulas are so complex that a computer program is needed to perform the calculations. In Contra Costa County, the courts use a program known as DissoMaster to calculate child support. The statutory child support number that the computer program generates is known as the “guideline” number. Courts have very little discretion when it comes to the award of child support. The courts must order “guideline” child support except in very unusual situations. The amount of the “guideline” child support is determined by numerous factors. However, two key factors are 1) the amount of income of both parties; and 2) how much time the child spends in each parent’s physical custody (custodial timeshare percentage). A parent that has a child in his physical custody only 10% of the time will pay significantly more child support than a parent that has physical custody 50% of the time. The reason for this is that a parent that has 50% physical custody of a child will be supporting the child half the time by providing food, clothing, shelter, etc. during their custodial time. Unfortunately, linking the amount of child support to child custody can create custody disputes that are driven by money issues rather than the best interests of the child.

Spousal support: Spousal support is taxable income to the recipient and tax deductible by the payor. There are two different methods of calculating spousal support. “Temporary “spousal support is the support that is paid while the case is waiting to get to trial. “Temporary” spousal support is calculated using the DissoMaster program. However, when a case gets to trial, a completely different method is used to calculate “long term” spousal support. When it comes to “long term” spousal support, the law prohibits the court from using the DissoMaster computer program to calculate spousal support. Instead, the court must take evidence on various factors set forth in Family Code 4320 and then decide the amount and duration of the award. The factors set forth in Family Code 4320 include the marital standard of living, the income of the parties, the assets of the parties, the health of the parties, whether or not there was any domestic violence, etc. While judges have little discretion when it comes to the award of child support, they have a great deal of discretion when it comes to an award of long term spousal support. Two judges can hear the same spousal support case and make very different awards. This is why it is important to hire a lawyer that is familiar with the local judges and their attitudes about spousal support.

Child Custody: The Family Code provides that it is the public policy of the State of California that children have frequent and continuing contact with both parents after the parties have separated and to encourage parents to share the rights and responsibilities of child rearing. In making decisions about child custody, the courts look to what is in the best interests of the children.

After parties separate, most parents are going to share joint “legal custody” of their children. Joint “legal custody” means that both parents share the right and responsibility to make decisions regarding the child’s health, education, and welfare. After parties separate, if they have joint legal custody of their child and an important decision has to be made regarding their child’s health, education or welfare, the parents are required to discuss the matter and make a joint decision. If they can’t agree, then they can ask the court to intervene and make the decision. If a parent has sole “legal custody”, then that parent has the exclusive right to make decisions about the child’s health, education, and welfare.

“Physical custody” orders define how much time a child spends in each parent’s physical custody. A “joint physical custody” order does not necessarily mean that the parties share physical custody on a 50/50 basis, it merely means that each parent has significant periods of physical custody.

Child visitation: Courts tend to stay away from language that awards a parent “visitation”. It is really a matter of semantics. Rather than having a court order provide that one parent has “visitation” or “joint physical custody”, court orders tend to simply define the time periods that the children will be in the physical custody of one parent and the time periods that the children will be in the physical custody of the other parent.

Family Court Services: If the parties cannot agree on custody issues, one party is typically going to file a motion asking the court to issue a custody order. When the motion is filed, the parties will be directed to contact Family Court Services and schedule appointments for “Orientation” and “Child Custody Recommending Counseling” (formerly known as “Mediation”). Orientation is a class provided by the court online that you must complete before attending Mediation. Mediation involves both parties meeting with a representative from Family Court Services at the courthouse in an attempt to mediate resolution of the custody dispute. If you and your spouse reach an agreement while at mediation with Family Court Services, the agreement will be typed up on a Memorandum of Understanding form while you wait and you will both sign the agreement. If you do not reach an agreement, Family Court Services will issue a Status Report and make a custody recommendation to the court. Our office will meet with you prior to you participating in mediation at Family Court Services and prepare you so you can present your best possible case in terms of a custody arrangement that you believe is in the best interests of the your children.

Post judgment modifications: Child custody orders are always subject to modification. The custody orders that may be in the best interest of a 2 year old may not be in the best interests of the child when the child is 5 years old. After a divorce, circumstances can change. Parties move, parties remarry, job schedules change; etc. When circumstances change, one party may want to return to court and ask the court to modify a custody order in the best interests of the children.

Child support orders are always subject to modification. Usually, spousal support orders are also subject to modification. Parties’ financial circumstances change. One party may lose their job or become disabled due to accident or illness. One party may receive a large promotion or switch to a higher paying job. The recipient of spousal support may begin to cohabit with a person of the opposite sex. There are numerous examples of “changed circumstances” that will justify filing a motion with the court to modify an existing child support or spousal support order.