When a marriage suffers an irrevocable break, it is possible to end it peacefully. We are strong advocates for our clients, but we do not believe in encouraging them towards a path of hostility, bitterness and revenge. We believe that we can achieve a positive and speedy resolution of family law cases, in a cost effective manner, and in such a way that allows our clients to maintain their mental and emotional health and move forward with their lives. When the family unit includes children, we work hard to ensure that they are able to experience the stability and joy of having loving parents in their life, even if those parents are no longer married.
It is our mission to be your strongest advocates. We understand that issues involved in the break-up of a marriage are complex and painful. Our twenty year counseling background prior to the practice of law allows us to provide you both the understanding and support you need at this critical juncture of your life, as well as the competent legal representation necessary to ensure a result that is fair and satisfying.
Some of the things you can do to help move your case along:
- Respond to our telephone calls, emails and letters in a timely manner.
- Maintain open and honest communication.
- Provide us without delay, necessary documents such as your tax returns, deeds for real estate, current pay stubs, mortgage statements reflecting current balance, updated statements reflecting values of stocks, bonds, IRA’s, pension and retirement accounts, annuities, credit card statements, accurate and updated information for all assets and debts secured during the period of the marriage, and any other documents that might be relevant.
- Be active in our discussions pertaining to your case, both by being receptive to advice being given, as well as being assertive in sharing your thoughts and perspectives.
California Residency Requirements
If you or your partner have decided that your marriage has reached the stage where it cannot be saved, you may be facing that most difficult decision – to obtain a divorce or a dissolution of your marriage. So long as California’s residency requirements are met you are eligible to file for dissolution of your marriage in California’s courts. To meet the residency requirements you or your spouse must have been a resident of the State of California for the six months immediately preceding the filing of the petition. To file in a particular County of the State of California, you must have lived in that County for three months preceding the filing of the petition.
California No-Fault Divorce
California follows a no-fault basis for divorce. This means that neither party needs to prove that the opposing party was at fault or a ‘bad person’ in order to file for dissolution of the marriage. The most common basis for filing for dissolution of a marriage in California is “irreconcilable differences.” The Courts will rarely question a party once they have filed a petition for dissolution based on irreconcilable differences.
California Community Property
California is one of nine community property states. Community property plays a Significant role in property division and distribution in actions for marital dissolution or legal separation. The law governing community property, while seemingly straightforward, can be complicated. It is thus critical to your case that all marital property be properly classified, whether as your separate property, community property, or quasi-community property. All property subject to division in a marital dissolution or legal separation proceedings is divided in accordance with the laws of the State of California.
Community property generally includes all of the assets and debts acquired by spouses during the period of the marriage, regardless of who actually earned or contributed to the income. Separate property is property that belongs only to one spouse, typically comprising of property brought into the marriage by that spouse, and can include benefits received from that property, such as appreciation, rental income, sale proceeds etc. Separate property can also include property obtained via gift or inheritance. However, mixing or commingling of assets after marriage can affect the character of separate and community property requiring tracing and in-depth analysis.
California law provides that community property is to be divided equally between the spouses, on a 50-50 basis upon marital dissolution. However, exactly which assets and debts properly belong to the community, and which are separate property, can become quite complicated, requiring analysis and tracing. Thus the process of properly classifying and dividing property can be very difficult. This is particularly true in a long term marriage, or a marriage where the parties fail to keep their separate property assets truly separate. For example a separate asset may be used to acquire a portion of a community asset, or vice-versa. This can pose significant challenges in the division of assets and debts in marital dissolution or legal separation actions.
Assets subject to division include but are not limited to:
- Investment assets, stock portfolios and/or trusts
- Pensions and retirement accounts
- Stock options
- Family owned businesses and closely held corporations
- Significant business or corporate interests
- Professional practice interests, inventory, and investments
- High-value homes
- Multiple real properties
- IRS tax debt
- Credit card debt
If the parties are able to agree on the classification and division of their property (real and personal), the parties may enter into a property settlement agreement and submit the agreement to the Court for approval. If the parties are not able to come to an agreement regarding the classification of property as separate or community, then the division of the community estate is decided by the Court during the legal separation or marital dissolution trial.
Spousal Support and Alimony
California law provides that spousal support more commonly known as “alimony” may be granted to either spouse in connection with a proceeding for marital dissolution or legal separation. An order for alimony may provide a spouse with temporary financial assistance during a proceeding for marital dissolution or legal separation. Such payments may be ordered to be paid to a spouse for a specific length of time or maybe permanently depending on the facts of the matter. Alimony must be ordered by the Court, although parties may contractually agree on an amount of support payable and request that the Court enter the agreement as an order. Once ordered, the amount of alimony payable and the duration of payment may only be modified upon a showing of a change in circumstances.
Alimony may be ordered by the Court only after consideration of all statutorily enumerated factors, including:
- The length of the marriage
- The standard of living established during the marriage
- The age and health of each spouse
- Each party’s source(s) of income
- The needs of each party
- Financial resources and liabilities of each party, including separate property
- The impact of the custodial parent’s employment on the needs of the minor children
- Each spouses’ ability to be support themselves
- Tax consequences to each party
- The contribution of each party to domestic duties, household, childcare etc.
- The contribution of each party to the education and training of the other party
- Domestic violence
When a marriage ends the family unit undergoes a drastic change in that it typically goes from being one household to two. It is inevitable that the parents must now share their duties, responsibilities and time with children in a manner that can be much different than when the family unit was one.
In California, issues related to child custody and visitation are decided using what is called “the best interests of the child” standard. There are different combinations that may work best for different families. Custody of children may be held by both parents (“joint custody”) or by one parent (“sole custody.”). California law also distinguishes between “physical” and “legal” custody. If a parent has “sole legal custody,” that parent has the exclusive right and responsibility to make decisions about the health, education, and welfare of the child. If the parents share “joint legal custody,” both parents are legally entitled to make such decisions. If a parent has “sole physical custody,” the child resides with that parent and is under the supervision of that parent. The Court may order visitation to the parent who does not have physical custody.
Types of Custody:
- Both parents may share both legal and physical custody.
- One parent may have sole legal and sole physical custody.
- One parent may have joint legal and sole physical custody.
- Both parents may share physical custody, while one parent has sole legal custody.
California law does not make a presumption in favor of any particular type of custody assignment. Rather it encourage the parents to work together in agreeing to a custody plan that takes into consideration the “best interest” of the child. California law requires that parties who are unable to agree on a child custody agreement attend mediation to try to resolve issues of custody and visitation. While the Court will issue a temporary child custody order based on the recommendations of the mediator, both parents have a statutory right to a child custody trial.
California has adopted statutory guidelines for determining child support. These guidelines require consideration of several factors including the amount of time the child or children spend with each parent, the income of each parent, the number of children for which support is required, the cost of health insurance paid by the parents, etc.
Marriages today frequently include:
- Couples entering a marriage may already have substantial assets of their own
- Second marriages
- Families with children from previous marriages
A pre-nuptial agreement simply allows the couple to talk about and agree as to how they wish to approach their finances and assets. This includes both, that which they are bringing into the marriage, as well that secured after marriage. This can feel distasteful and unromantic to say the least. Yet, having a clear understanding and agreement before getting married can help avoid a whole host of problems after the marriage.
The significance of a prenuptial agreement is probably even more important in the unfortunate event of the marriage breaking up, than during the course of the same. The purpose of a prenuptial agreement is to provide persons who anticipate entering into a marriage with a clear understanding and agreement of how certain issues will be resolved upon dissolution, with the object of avoiding litigation should an action for dissolution be commenced. Parties may also enter into a post-nuptial agreement, which is an agreement entered into during marriage that defines how issues will be resolved should the marriage be dissolved, or upon the death of one spouse. Post-nuptial agreements are subject to the same statutory rules, and have the same effect, as prenuptial agreements.
Prenuptial agreements identify property brought into the marriage; it also addresses how income and assets acquired during the marriage will be characterized and allocated. A prenuptial agreement can designate that certain property and income is to remain the separate property of one party and can either adjust or avoid the application of California’s community property laws upon dissolution. Additionally, these agreements may include provisions for the division of debt, division of real property, medical coverage, life insurance, and even the payment of spousal support upon dissolution.
However, for a prenuptial agreement to be enforceable it must be properly drafted and the parties must have provided each other with full and accurate disclosure of their assets and debts. It is also imperative for enforceability that each side has had the opportunity to have an attorney review the document to ensure that the decision to enter into the agreement is done voluntarily and will full awareness.
The information presented herein is solely to provide you with some foundational knowledge and is not meant to constitute specific legal advice. Your lawyer is in the best position to help you understand how the law applies to the specific issues surrounding your case.