While almost no one enters a marriage thinking it will end in divorce, it happens. Whether it be as a result of differences on how to raise the child/children, an act of infidelity, or simply due to the fact that the two members of a couple simply don’t get along anymore, people regularly get divorced in the modern era. While you may feel more or less certain about your decision to get divorced from your spouse, most people feel less certain about the divorce proceedings, which are usually fairly complicated. A typical divorce in the state of California usually takes between 8 to 20 months to complete, and costs over $10,000 in legal fees. To ensure you receive the proper legal representation to expedite this process and spend your money wisely, call 858-529-5150 to talk with a local attorney in El Cajon who has significant experience handling divorce cases in the area.
There are a number of ways in which a divorce can be carried out. Your typical divorce is classified as either a contested or an uncontested divorce, depending on whether or not both parties are in agreeance about the details of the divorce settlement. However, there are a few alternative forms of divorce that have grown in popularity over the past few years. One such form of divorce is what is referred to in the legal field as a collaborative divorce. Through a collaborative divorce, you and your spouse hire lawyers who will work in cooperation to settle your divorce case. Prior to engaging in a collaborative divorce process, both parties involved sign onto a participation agreement, which sets the rules for how the collaborative divorce proceedings will play out. After the negotiations wrap up and come to completion, the lawyers representing both sides collaboratively draft an official agreement, subject to approval by the two divorcing spouses. The main advantage of a collaborative divorce is that it allows you and the person whom you’re divorcing to get divorced in a more time efficient manner, and that most of the time it costs less money to carry out a collaborative divorce than a divorce that goes to trial. Our divorce lawyers in El Cajon have experience dealing with this type of divorce and would gladly represent you in such a collaborative divorce.
Another option for divorce that has become more popular in recent years is what is referred to as a summary dissolution. This type of divorce, however, is not available to everyone and only applies to marriages that meet certain conditions. To engage in a summary dissolution, a couple must not own any lands or buildings together, have been married for no more than 5 years, have no children together, jointly owe less than $6,000 in joint debts, and own less than $40,000 worth of property in either communal or separate property. Also, both spouses must agree to an absence of spousal support, and sign an agreement to evenly divide any communal assets and debts. While summary dissolution is considered slightly easier than an actual divorce, it is not a simple process, it requires a great deal of legal paperwork that must be filed in court, and you must prove all of the conditions above. As a result, most people still hire a lawyer when dealing with a summary dissolution.
There are a number of specific issues that often come up during one’s divorce proceedings. This section will explain some of the typical issues that may arise in your divorce.
Child Support
The laws surrounding child support in the state of California are among the most complex laws associated with divorce. As a result of this fact, it is highly recommended that you consult and hire one our experienced child support lawyer based in El Cajon, who can be reached at 858-529-5150.
Sometimes, child support can be agreed upon by the divorcing parties outside of the courtroom setting, but often this does not work out as the two sides disagree on what constitutes a fair child support agreement. To begin the court-centered process for child support, the requestor must first submit a request form, which will be served to the other parent in the divorce, and must be responded to in a set amount of time. After this initial stage is completed, the case will head to a child support hearing, which is attended by both of the involved parents and their legal representatives.
At this hearing, the exact amount of child support owed by one parent to the caretaking parent will be determined. In California, this determination is usually done through a computer system, although the computer calculation can be ignored if the judge can determine some or all of the entered data is false. The main factors taken into account to calculate the exact dollar amount of child support owed per month are various, but the main factors are the number of children being supported, the amount of time spent with the child by each parent, and the disposable income available to each parent. The disposable income available to each divorcing partner is determined through the available records of their tax returns.
Child support ends when the child turns 18 years of age, with a few exceptions. If the child is still in high school at the age of 18, then the child support will continue until he/she finishes their high school education or has their 19th birthday, whichever comes first. Also, child support ends if the child gets married, is legally emancipated, or joins the military.
Paternity
An issue closely related to child support is another common topic encountered in divorce cases: paternity. For many, paternity is established at the time of the birth of the child when the father signs the declaration of paternity, which legally acknowledges that he is the father of the child. The signing of this document means the father’s name will be present on the birth certificate, which can be used in a court of law to prove paternity. If the father does not complete a declaration of paternity at the time of the birth of the child, then his parental status has not been legally verified. In order to gain parental rights, a father must take paternity action in court, in order to legally prove that he is the father of the child in question. The most common method used by alleged fathers to prove they are the fathers of a child in question is to complete a state-managed DNA test and analysis.
Until a man who claims he is the father of a child is able to gain legal verification that a child is his, he usually possesses no legal rights as a parent. This means that under California law, he has no rights to custody of a child, or visitation rights of any kind. It also means he is not responsible for any child support payments until it can be proven that he is in fact the father of the child in question.
California is what is known as a community property state, meaning that in the absence of a legally verified written agreement between the two parties, all communal property, in other words property gained by the couple while their marriage was still in effect, will be split completely evenly between the two sides. Separate property is retained by the original owner of that property. Under California law, separate property is defined as property owned by a spouse before/after the official start of the marriage, any rents or profits derived from that separate property that was owned prior to the marriage’s beginning, and any property that was acquired during the marriage by means of inheritance or as the result of a gift. A common misconception is that this law does not apply to bank accounts, however, if the funds in the bank account were acquired during the marriage, then they count as communal property, and will be divided accordingly.
An important caveat for this rule is that separate property may include property interest that can be interpreted as communal property. This caveat is often seen in property disputes involving a home that appreciated in value over the course of the marriage. If a home was acquired before the start of a marriage, but had mortgage payments which were paid with communal funds, then the value by which the house appreciated would be considered community assets, and evenly divided between the two partners in the case of a divorce. This concept also applies to businesses and any other kind of asset that was originally owned by one party but funded by both parties.
Child Custody
If the two divorcing parents are unable to come to an agreement independently regarding the custody of their child or children, then the decision will be made for them by a judge in family court. The guiding principle that will determine the judge’s decision is what is perceived by the judge as the child’s/children’s best interest; the judge will choose the custody arrangement that he/she feels is best for the child/children of the divorcing parents. A common misconception is that family courts in California favor the mother, this is not true, as judges are specifically instructed by Family Code 3040 not to give preference to a parent based on gender. However, gender bias has been previously observed in the California family court system, and you should consult with a local El Cajon lawyer if you feel you are being discriminated against based on gender.
In order for a judge to make a decision on the custody settlement for divorcing spouses, a few main factors will be taken into account. The child’s attachment to his/her school, home, and community, the ability of the two parents to care for the child both financially and emotionally, the emotional bonds between the child and his/her individual parents, the health and age of the child, and the presence of family violence or substance abuse.
There are two types of custody that the judge will decide upon when making his/her decision regarding the custody arrangement. Legal custody refers control over decisions that have a major impact on the child’s life, such as travel, enrollment in mental health therapy, and choice in child care. Physical custody refers to the parent with whom the child will live. Both of these forms of custody can be joint or sole, meaning each form of custody can be shared or exclusive to one parent.
Spousal Support
Spousal support is an agreement between the higher-earning spouse and the lower-earning spouse for the higher-earning spouse to send regular payments to the other spouse. This may be agreed upon between the two spouses and their legal representatives outside of the courtroom, or it may be decided by a judge in cases of divorce that go to trial. If the decision of spousal support is left up to a judge, he/she will take a few main factors into account before making a decision. These include the length of the marriage, the financial needs of each spouse based on medical history or other issues, the earning capacity of each spouse, the presence of children, and other relevant factors.
There is no exact way in which spousal support is determined by a judge, unlike with child support it is not determined by a computer program. Instead, it is up to the discretion of the judge to determine what he/she thinks is a reasonable amount of money required by the lower-earning spouse to maintain the standard of living he/she became accustomed to during the marriage. In addition, the judge may include what is called a Gavron Warning, which instructs the receiving party to make reasonable efforts to support themselves, and not rely completely on the alimony without making an attempt to gain or increase his/her income.
Spousal support typically comes to an end according to a date set by the judge, when either of the parties passes away, or when the party receiving the spousal support becomes married to a new partner.
Child Visitation
A child visitation agreement is required when one parent has primary physical custody of the child, in order to arrange when the other parent can see their child. An agreement can be made by the two parents outside of a courtroom that becomes fully binding when the divorce is legally finalized. If an agreement cannot be reached by the two parents involved, then the judge will refer them to a mediator pulled from Family Court Services, or a similar program, in order to help them come to an agreement. If the couple still cannot come to an agreement after court-ordered mediation, then the judge will be forced to make a final decision regarding the custody and visitation schedule. The factors taken into account by the judge for visitation are similar to the factors taken into account in custody decisions; they include emotional bonds between the child/children and their parents, evidence of abuse or neglect, and the ability of the child to regularly move from one house to another depending on health or other concerns.
There are a few factors by which a judge can and cannot deny child visitation to a parent. If a parent has a criminal record of violence or of child abuse, then a judge is legally permitted to deny that parent child visitation privileges. However, a judge cannot deny visitation to a parent simply based on a physical disability, certain spiritual practices or beliefs, or a temporary absence if the parent showed an ongoing interest in the child and attempted to remain in contact with the child/children in question.
Legal Separation
An alternative to divorce that you may want to discuss with your lawyer is what is called legal separation. Perhaps for religious reasons, a divorce is not something that is desirable for you, and a legal separation would be a preferable arrangement. Perhaps you and your spouse do not want to permanently end your marriage with a divorce, but are sure you want to legally detach from one another for a period of time. A legal separation does not preclude one, however, from ever getting a divorce, in fact for many couples a legal separation judgement is a convenient stepping stone to divorce.
There are a few main differences between legal separation and divorce. A divorce is a permanent dissolution of a marriage, whereas a legal separation does not end a marriage completely. A legal separation can be put into effect without a delay, but a divorce usually takes about 6 months until it is legally finalized. Also, a legal separation must be fully agreed upon by both of the involved parties, whereas a divorce can be instigated and fully completed without the consent or support of one of the involved parties.
Find a El Cajon Divorce Lawyer Near Me
Do you still have questions about divorce law after reading through this guide, or questions about your particular divorce case? Looking to hire a top-notch divorce attorney? Then you should call 858-529-5150 right now to have an informative discussion with a local qualified El Cajon Divorce Attorney, who is part of our great group at San Diego Divorce Attorney. Divorce law is not easy to understand, and even if you and the person you are divorcing are on good terms, it is still a good idea to have an attorney who will ensure your rights are respected and the settlement is fair.
