Estate Planning 101: Q & A
November 9, 2015
What is Real Estate Law?
January 11, 2016

Divorce and Custody: Q & A

1. What are grounds for divorce in California?

In California, there are two grounds for divorce (also known as dissolution):

  • Irreconcilable differences. You simply check this box on the dissolution petition and the court will grant your divorce.
  • Incurable insanity (almost never used). Medical proof that one spouse was insane when the petition was filed-and remains incurably insane-is required.

In addition, you or your spouse must have lived in California for six months and in your county for three months before filing a petition to dissolve your marriage. There is no residency requirement for filing for legal separation.

2. Are there rules that my spouse and I must follow during the divorce process?

Yes. There are temporary restraining orders (rules prohibiting both of you from doing certain things) that go into effect automatically when the divorce process begins. For example, neither of you will be allowed to take your minor children out of state without the other spouse’s written permission or a court order. Nor will either of you, in most instances, be allowed to cancel or change the beneficiaries on your insurance policies or transfer property. And you will be required to notify your spouse before any out-of-the-ordinary spending-and be prepared to account for such expenditures to a judge. These requirements are described on the back of the divorce Summons.

3. Can I get a legal separation or an annulment instead of a divorce?

Yes. You can get a legal separation or an annulment (also called a nullity) without having lived in California for six months or your county for three months before filing.

  • Legal separation. You may have religious, insurance, tax or other reasons for wanting a legal separation instead of a dissolution. If you obtain a legal separation, you and your spouse will remain married, but the court can divide your property and issue orders relating to child custody, visitation, child support and spousal support, and, if necessary, a restraining order.
  • Annulment. If you are granted an annulment, it is as though your marriage never existed. You may be able to get an annulment if you married when you were a minor without the consent of your parents or guardian, or if certain types of fraud or deceit were involved. If you want an annulment, however, you will have to appear in court for a trial.

4. Is there a simplified process for getting a divorce?

Yes. California has a process called summary dissolution. If you qualify for a summary dissolution, you will have less paperwork to file and you will not have to appear in court. You may be eligible for such a process if you and your spouse have agreed in writing to a division of your assets and debts and if the following conditions exist:

  • You have been married for five years or less.
  • You have no children from the relationship.
  • Neither of you own a home or other real estate.
  • The value of all community property amounts to less than $25,000.
  • Your combined debt does not exceed $5,000.
  • Both of you waive spousal support.

Both spouses must agree to all of the terms of a summary dissolution. Also, either of you can cancel it for any reason before the dissolution is final.

5. How will our property be divided?

California law recognizes that both spouses make valuable contributions to a marriage. Most property will be labeled either community property or separate property.

  • Community property. All property that you and your spouse acquired through labor or skill during the marriage is, at least in part, community property. You and your spouse may have more community property than you realize. For example, you may have an interest in pension and profit-sharing benefits, stock options, other retirement benefits or a business owned by one or both of you. Each spouse owns half of the community property. This is true even if only one spouse worked outside of the home during the marriage-and even if the property is in only one spouse’s name.

With few exceptions, debts incurred during the marriage are community debts as well. This includes credit card bills, even if the card is in your name only. Student loans are an exception and are considered separate property debts.

Community property possessions and debts are divided equally unless you and your spouse agree to an unequal division-or unless there are more debts than assets. Keep in mind that if your spouse agrees to pay a community debt and fails to do so (or files for bankruptcy and discharges the debt), you may have to pay the creditor.

Division of possessions and debts can be complicated. You should seek legal advice before entering into any such agreement. And if you have already signed away your rights to certain property, consult an attorney to find out if you are bound by the agreement. Finally, if you and your spouse cannot agree on the division of your debts and possessions, a judge will make the decision for you. He or she may not split everything in half; instead, the judge might give each of you items of equal value. For example, if your spouse gets the furniture and appliances, you might get the family car.

  • Separate property. Separate property is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during the marriage; and gifts to you alone, not you and your spouse. Separate property is not divided during dissolution. Problems with identifying separate property occur when separate property has been mixed with community property. (The community may acquire an interest in separate property over time.) However, you may be entitled to receive your separate property back even if it has been mixed. There are complex tracing requirements where property has been mixed. Debts incurred before your marriage or after your separation are considered your separate property debts as well.

You will be required to file proof that you delivered your spouse a list of all of your community and separate property, and your income and expenses, which is attached to documents called the preliminary and final declarations of disclosure. Determining the character of property can be complicated and mistakes can be costly. Obtain legal advice to make sure that your property is correctly listed as community or separate.

6. What is spousal support? Is it the same as alimony?

Spousal support is the term for alimony in California. Spousal support is money that one spouse pays to help support the other after the filing of a dissolution. The spouse receiving such support will pay federal and state income taxes on it, and the one making such payments will be entitled to a tax deduction. Consult with a lawyer to make sure the orders are drafted correctly or you may not be entitled to the deduction.

To determine the amount of spousal support, the judge will consider such factors as the standard of living during the marriage, the length of the marriage, and the age, health, earning capacity and job histories of both individuals. If the marriage lasted less than 10 years, it is unlikely that a judge will order spousal support for longer than half the length of the marriage.

Perhaps neither of you need spousal support. Since circumstances can change (you could become ill, for example, or lose your job), you may ask the judge to reserve jurisdiction to order spousal support in the future. (The judge will be more likely to do this if your marriage lasted 10 years or close to it.) This will leave the door open so you can ask for such support at a later time. Under certain circumstances, you or your spouse may go back to court and ask the judge to change the amount of support. The judge also can order a wage assignment directing a spouse’s employer to pay spousal support.

7. What happens to our children when we separate?

You can determine what happens. The best solution for the children is for the parents to reach an agreement on who will take care of them. If you and the other parent agree on a parenting plan, you should attach a copy of the plan to the dissolution papers. Your parenting plan can become a court order; in most cases, a judge will approve a custody plan agreed upon by both parents.

You and the other parent are both responsible for supporting your children if they are under age 18. And this duty may extend beyond age 18 if certain conditions are met.

The amount of support to be paid by one parent to the other is based on established guidelines. Computer programs are available for helping parents determine who will pay such support, and how much is to be paid. Significant factors include each parent’s income and the amount of custodial time each of you spends with the children.

Such support need not be reported as income for federal and state tax purposes, and the parent paying such support is not entitled to a tax deduction.

If necessary, you may request a wage assignment order. This is an order that requires a parent’s employer to make child support payments directly to the parent entitled to receive support.

8. What happens if we cannot agree on custody?

If you and the other parent are unable to agree on custody or visitation, a judge will make the decision for you. There are several steps to finalizing a custody plan. However, custody and visitation can be decided on a temporary basis if there are immediate problems. For example, a new school year may be approaching and you cannot agree on a school for your children. Or, one parent intends to move and wants to take the children along. (Keep in mind that you may not be able to prevent such a move unless you typically spend a lot of time with your children.)

Before any hearing or trial involving child custody or visitation, both parents are required to meet with a trained counselor hired by the court. The counselor will try to help you agree on a custody and parenting plan. These sessions are arranged through Conciliation Court or mediation offices, and are held in private offices located in the courthouse. In some counties, the assigned mediation court counselor will submit a recommendation to the judge even if you and your spouse did not reach an agreement. In other counties, these sessions are entirely confidential and the counselor can only report agreements reached by the parents. You should inquire about the rules in your county.

Depending on the nature of the custody dispute, the judge may order a psychological evaluation of the family as well, and may appoint an attorney to represent the children. If an attorney is appointed for your child, you and the other parent may be required to bear all or part of the cost.

9. What choices does the judge have in granting custody or visitation rights?

The judge may give custody to one or both parents, or, in some cases, to another adult based on the best interests of the child. Considerations include the child’s health, safety and welfare, as well as any history of abuse by one parent. For custody to be awarded to someone other than a parent, however, the judge would have to believe that giving custody to either parent would be detrimental or harmful to the children.

  • Joint legal custody. The parents share the right and responsibility to make important decisions about their children’s health, education and welfare. Such decisions might include, for example, where the children will attend school or whether they should get braces on their teeth.
  • Sole legal custody. One parent has the right to make decisions related to the health, education and welfare of the children.
  • Joint physical custody. The children spend time living with each parent on a regular basis. This does not mean, however, that the children must spend equal amounts of time with each parent.
  • Sole physical custody. The child lives with one parent and the other parent has visitation.

Try to keep in mind that the actual time spent with your children is probably more important than the legal terminology used to describe the arrangement. Also, the specifics of such custody orders can vary. For example, a judge who orders joint legal and physical custody may name one parent as the primary caretaker and one home as the primary residence. Or, a judge might order sole physical custody to one parent and supervised or no visitation to the other if it appears that a parent may present a threat to the child’s welfare or safety. In addition, stepparents and grandparents may be given visitation in certain circumstances. Be clear and specific in writing your parenting plan.

Law enforcement may help you enforce a custody or visitation order, if necessary. You will need a certified copy of the order. Or, if you are unable to locate your child, you may seek assistance from your local district attorney. The person violating the order could possibly, at your request, be found in contempt of court. If the other parent won’t obey the order and these suggestions don’t work, you may want to consult an attorney.

It is important, too, to remember that your custody plan can be changed if it doesn’t work. If your circumstances change, you can return to court and request a change in the parenting plan even if a temporary or permanent order has already been established. The same procedures discussed in question #12 would apply to such a request.

Or, if you and the other parent can reach an agreement, you may submit it to the judge and ask for a court order. Judges often approve changes even without a hearing if you both request them.

10. Will the judge consider our children’s wishes?

It depends. The judge must consider what the child wants if the child is “of sufficient age and capacity to reason.” The judge is not required, however, to follow the child’s wishes.

It may be difficult to determine the child’s true wishes if one or both parents have coached the child. Most often, children don’t want to hurt either parent. Avoid trying to persuade your child to choose you over the other parent; this puts a tremendous emotional strain on the child. The court mediator or other evaluator may meet with the child to help convey the child’s real desires.

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