Divorce/Dissolution
If you’re a California resident getting ready to file for divorce in the Golden State, here’s the lowdown on Legal Separation. There is no residency requirement for a legal separation. A legal separation has all the components of a divorce with one distinction: after a legal separation, you are still legally married. Like a divorce, all assets and debts will be divided, and a parenting plan, child support, and/or spousal support plan will be made as it applies to your case. Legal Separations are not common, but they are done in cases that benefit both parties. Legal separations are frequently done for health insurance and survivor retirement benefits.
Residency Requirement. Before you can file for divorce in California, at least one spouse must be a resident of the state for six months and the county for three months. Once you have filed the divorce with the court and served the paperwork to your spouse. Your marital status can be terminated as soon as six months from the service of summons.
No Common Law Marriage. There is no common law marriage in California—you are not married unless you obtained a marriage license and entered into a legal relationship in California, or your marriage was legal where the ceremony took place, and you cannot get a legal divorce unless you were legally married. It does not matter how long you have lived together or whether one of you took the other’s name.
Grounds for Divorce. California is a no-fault state, which means that you will not argue for a divorce based on the other person’s wrongdoing. Most often, the basis for a divorce is “irreconcilable differences” that have caused the marriage to break down. Fault is not entirely irrelevant, though—if your spouse abandoned the family, committed adultery, or was violent, the court may consider those facts in dividing property or awarding alimony.
Property Division. California is one of only a handful of states that use a community property system, meaning that all of the property and debts that you acquired during your marriage are presumed to be shared equally between the two of you at divorce. That communal property includes income of all kinds, savings from income, property, and anything else that you own or acquired during the marriage.
However, communal property does not include either spouse’s separate property, which includes inheritances, gifts, and property that the spouse owned before the marriage, as long as the separate property was not mixed up with the marital property. These issues can be highly litigated because there is a lot at stake. Issues may include whether your parents’ down payment on the community residence was a gift to you or the community property. If it was a $100,000 down payment and is considered separate property, you would receive the first $100,000 from the house sale. Alternatively, if the $100,000 down payment is viewed as a joint gift to the marriage, then there would be no reimbursement.
Child Custody. California courts begin with a presumption that it is best for a child to have frequent and continuing contact with both parents when the parents separate. If possible, judges want to support joint custody arrangements. However, the details of the parenting plan will be determined by the children’s best interests. If parents can agree on a parenting plan, the court will usually approve it. If you are not able to agree, you will be ordered to attend mediation sessions, and if that does not work, the court will take over and the judge will decide how you’ll share time with your children.
Reasons not to share the child usually involve drug and/or alcohol abuse, mental illness, domestic violence, child abuse, registered sex offender status, work schedules, or other factors that a judge decides is important when determining what is best for the child.
Child Support. Like all states, California requires parents to support their children after the parents’ separation. The amount of child support depends primarily on each parent’s income and other resources, and how much time each parent spends with the children. Child support is calculated with the court-approved child support calculator. Sometimes the courts will “impute” income to a parent who has the capacity to earn more than he or she is actually earning. Issues involving self-employment, owner-operated businesses, bonus income, stock options, and various other complicated issues require the expertise of the Bacinett Law Offices.
Same-Sex Marriage and Divorce. Same-sex marriage has been legal in California since 2013. It was also legal to marry during a period in 2008. Nevertheless, same-sex marriage was federally legalized on June 26, 2015. The same rules apply to a same-sex marriage as heterosexual marriage in a divorce, including the division of community property, retirement accounts, bank accounts, the creation of spousal and or child support orders, etc. California recognizes any legal gay marriage from another state. However, the divorce laws between domestic partnerships and gay marriage are not equivalent. Whether you are seeking to terminate a domestic partnership or marriage, The Bacinett Law Offices are highly competent and experienced in both arenas and will work closely with you to reach your desired outcome.
Domestic Partnerships. The experienced attorneys at The Bacinett Law Offices in San Diego, California, are well-familiar with California domestic partnership law, and Attorney Bacinett has a unique sensitivity with regard to difficult issues, such as those involving children and domestic partnerships.