Family Law

Divorce

A divorce (also called dissolution of marriage or dissolution of domestic partnership) ends your marriage or domestic partnership. After you get divorced, you are single, and can marry or become a domestic partner again.

If you get divorced, you can ask the judge for orders like child support, spousal support, child custody and visitation, domestic violence protective orders, division of property, and other orders.

For married persons to get a divorce, you must meet California's residency requirement. To file for divorce, either you or your spouse must have lived in:

• California for the last 6 months
• The county where you plan to file the divorce for the last 3 months

If you do not meet the residency requirement, you can still file for a legal separation.
In California, starting on January 1, 2005, domestic partners must also file for dissolution, legal separation, or annulment to end their relationship.

There are three sorts of divorces available in California:

• Summary dissolution
• Uncontested divorce
• Contested divorce

Summary dissolution

If you and your spouse agree on all terms of the divorce, have no children, have no disagreements about how to divide your property and debts once you are no longer together, and you were married or in a domestic partnership for less than 5 years, you may qualify for summary dissolution.

To qualify, it is also necessary that you:

• Do not own or have an interest in any real estate
• Do not owe more than $6,000 for debts acquired since the date of your marriage or registration of your domestic partnership
• Do not have separate property worth more than $36,000

You must also agree that neither spouse nor domestic partner will ever get spousal or domestic partner support.

Uncontested divorce

If you and your spouse or domestic partner agree to all terms of your divorce, legal separation, or annulment, and can agree about how to handle money, property, and parenting, you have an uncontested case. Most uncontested cases can be handled by mail and brief contacts with a judge.

Contested divorce

If you and your spouse or domestic partner cannot agree to all terms of your divorce, legal separation, or annulment, you have a contested case. You will have to go to court to resolve your disagreements.

Division of Property and Debts

In almost every type of Divorce there will have to be an equal division property accumulated during the marriage/partnership (community property assets) including businesses, real property, all types of financial assets (bank accounts, investments, retirement and pension plans), vehicles and personal property. Separate property typically remains the property of the owner spouse. Separate property is accumulated prior to marriage or partnership or after separation. However, issues may arise if the separate property has changed it’s characterization during the relationship and may be deemed to be a mix of community and separate property.

The parties' debts will also be divided. Often, but not always, debts accumulated during marriage are deemed community debt. However, the debts may be unequally assigned to the spouses depending on how the parties' assets are assigned.

Legal Separation

A legal separation in California is for couples that do not want to get divorced but want to live apart and decide on money, property, and parenting issues. Couples sometimes prefer separation for religious reasons. A legal separation does not end a marriage or domestic partnership. You cannot marry or enter into a partnership with someone else if you are just legally separated.

You do not need to meet California's residency requirements to file for a legal separation. If you file for a legal separation, you may later be able to file an amended petition to ask the court for a divorce after you meet the residency requirements.

In a legal separation case, you can ask the judge for orders like child support, spousal support, partner support, custody and visitation, domestic violence protective orders, or any other orders you can get with a divorce case.

Spousal Support

When spouses or domestic partners separate or divorce, the court may order one person to pay the other a certain amount of money each month for their living expenses. This is called spousal maintenance, also known as spousal support.

Courts do not use a formula to figure out how much support to order. A judge takes many things into consideration when deciding what support should be ordered. Some things the judge may consider include:

• The length of the marriage or domestic partnership
• The age and health of each spouse or domestic partner
• How much income each can earn on their own
• What the expenses of each spouse or partner are
• Whether there are minor children at home

Either spouse or domestic partner can ask the judge to change the support amount if the situation changes. You can also ask the judge for help enforcing a support order.

If a child support agency is currently helping you enforce a child support order for a child living with you, the agency can also help you enforce a spousal support order.

Paternity/Parentage

Paternity is the legal acknowledgment of the parental relationship between a child and his or her father and must be established if the parents were not married at the time the child was born. Paternity issues often arise in cases involving child support. Fathers who wish to obtain a court order regarding custody and visitation of a biological child must first establish Paternity. Paternity is also important in child adoption, inheritance, custody, visitation, and health care.

Presumed Paternity: If the parents were married when the child was born, the law in California usually considers the husband to be the father, even if he is not the biological father. This means the father will have both rights and responsibilities pertaining to the child.

De Facto Parentage: A person may be deemed to be a “de facto” parent because he or she accepted the child into his or her home, assumed the roll of parent and held the child out to the world to be his or her child.

Parentage: After January 1, 2005, if same sex parents are registered domestic partners when a child is born, the California law assumes that both of the domestic partners are the parents of the child. However, given federal law issues same sex parents should seek legal advice to make sure that the parentage is clear particularly if they are planning on moving to another state.

When people who are not married cannot agree about parentage, the court can order genetic testing. The mother, child, and alleged father are required to submit to these tests. If a party refuses to submit to tests, then the court has the power to resolve the parentage issue against that party.

Usually, you must establish a child's parentage before you can get child support or custody and visitation orders. You can ask the judge for child support or custody and visitation as part of a case that establishes the parentage of a child.

Child Custody & Visitation

When you separate or divorce, you need to decide who has custody of your children and how they are taken care of. Custody comes in two types: legal and physical. The parent with legal custody makes important decisions concerning health, education, or welfare for the children. The parent with physical custody lives with the children.

In California, either parent can have custody. The parents can share custody. The judge makes the final decision about custody but usually approves an arrangement both parents agree on. If the parents cannot agree, the judge makes a decision after a hearing. Courts do not automatically give custody to the mother or father, no matter what the age or sex of your children. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability, or a different lifestyle, religious belief, or sexual orientation.

Legal custody can be joint, where both parents share the right and responsibility to make important decisions about the heath, education, and welfare of the children. It can also be sole, where only one parent has the responsibility to make these decisions.

Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means both parents share the responsibility in making important decisions in the children’s lives, but the children live with one parent most of the time. The parent who does not have physical custody usually has visitation with the children.

The law says that judges must give custody according to what is in the best interests of the children. Judges look at the children's health, safety, and wellbeing to decide whether to give custody to one or both parents. Courts consider any history of abuse by one or both of the parents, as well as use of alcohol or drugs.

In a few cases, if giving custody to either parent would harm the children, courts give custody to someone other than the parents because it is in the best interest of the children. Usually, this is called guardianship, where someone who is not the parent asks for custody of the children because the parents cannot care for the children.

After a judge makes a custody or visitation order, one or both parents may want to change the order. Usually, the judge approves a new custody and visitation order that both parents agree to. If the parents cannot agree on a change, one parent can ask the court for a change. That parent has to ask for a court hearing and prove to the judge that there is a change in circumstances, harm to the children, or other good reason to change the order.

Child Support

Child support is money that a court orders one parent to pay the other parent every month to support their children. California has a guideline for figuring out how much child support should be paid if the parents cannot agree on an amount. The judge decides the child support based on:

• How much money the parents earn or can earn
• How much other income each parent receives
• How many children the parents have together
• How much time each parent spends with their children
• The tax filing status of each parent
• Support of children from other relationships
• Health insurance expenses
• Mandatory union dues
• Mandatory retirement contributions
• The cost of sharing daycare and uninsured health-care

Child support can also include the cost of special needs like traveling for visitation from one parent to another, educational expenses, and other special needs.

Child support payments are usually made until children turn 18. Parents may agree to support a child longer.

You can ask the judge to make a child support order when you get a divorce, legal separation, or annulment, or establish paternity.

Either parent can later ask the judge to change the amount if the situation changes. Parents can also ask the judge for help enforcing a support order.