Divorce is often a painful process, and your first instinct may be to want to get the process over as quickly as possible in order to avoid further discomfort. However, while divorce is naturally an experience that you want to move past, it is important to make sure you go through your divorce with levelheadedness and sensibility, otherwise you may end up regretting the terms of your divorce for years to come. In order to make sure you avoid this feeling of regret, it is best to employ an attorney who has expertise in family and divorce law, and will make sure you are not cheated in any way during your divorce proceedings. To speak with an attorney who is highly regarded and has experience in La Mesa, call 858-529-5150 to get on the phone with a divorce lawyer who can take on the burden of handling the legal complexities of the divorce process and guide you from beginning to end.
In order to file a divorce in San Diego County, you must have resided in San Diego for at least 3 months, and in California for at least 6 months. California is a no-fault state when it comes to divorce, which means that fault, such as unfaithfulness or domestic violence, does not need to be proven in order for courts to accept a divorce, as opposed to other states which only grant divorce when certain grounds for divorce exist. Also, divorcing couples do not need to physically separate before divorcing, it is perfectly legal for a divorcing couple to share a house. To begin the divorce process, one party must submit a Petition for the Dissolution of Marriage in the Superior Court of San Diego County. The other party will then be served with a summons form informing them of the requested divorce, and is responsible for responding to the summons within 30 days. Also, in California the spouse seeking the divorce is required to share certain financial records with the other spouse. These include sources of income, living expenses, debt of any kind, owned property, and a few other key financial issues.
If no response is received by the petitioner within 30 days, the case proceeds regardless, with the next step involving the request of orders for issues such as alimony, custody, property division, and other central issues. If the spouse responds, the two of you and your lawyers will trade information about assets, debts, and other relevant issues, and then try to come to an agreement regarding the exact terms of the split. If an agreement is reached, it is made official with the appropriate forms such as a Marital Settlement Agreement, and will usually be approved by the courts if it doesn’t violate any laws, which it shouldn’t if it has been reviewed by a qualified attorney. If an agreement cannot be reached, then the two parties must decide to enter mediation, arbitration, or a full-on trial in family court where a decision regarding the details of the settlement will made by the judge after hearing arguments from both sides.
After the settlement is agreed upon or decided by a judge or arbitrator, then the divorce process is almost over. However, it takes a bit of time for the divorce to become finalized. While the judgement or agreement is often made within a couple of months, the marriage is not considered legally finished in the eyes of law until at least 6 months after the date when the spouse receiving the petition acknowledged that they indeed received the paperwork. After 6 months, the marriage is officially dissolved, and both parties are free to remarry without violating any bigamy laws.
The filing process, while only the preliminary step in the divorce process, is complicated and involves a bunch of intricate legal forms. Call 858-529-5150 to schedule an initial consultation with a La Mesa divorce lawyer who can guide you through the filing process. You also may want a lawyer to help you with the rest of the process, as it involves more paperwork and other central legal issues, some of which are explained in the paragraphs below.
Alimony
Alimony, also commonly referred to as spousal support, is a regular payment or in rare cases a lump sum given from one divorcing spouse to the second spouse, in order to help that spouse uphold the standard of living to which he/she has become accustomed. Alimony usually begins under a temporary status, which lasts until the divorce is finalized by a court of law. Spousal support can then become a regular long-term payment if so ordered by a judge or agreed upon separately by the two divorcing parties.
The dollar amount involved in temporary alimony is determined by a set formula, with each local court in California using a slightly different formula. Long-term alimony, however is not determined by a formula, but rather in an agreement by the divorcing parties or by a judge using certain central factors to make a decision. These central factors include the length of the marriage, the income of each party, the earning potential of each party, the amount needed to maintain a certain standard of living, and the presence of children which may make it difficult for one spouse to obtain a job, among others.
The judge is given full discretion to make a decision on how long the alimony will last, generally the alimony will not last longer than half the length of the marriage if the marriage lasted under ten years, which is the case in most divorces. If the marriage lasted longer than 10 years, the judge may decide that alimony will last indefinitely, although this is not guaranteed. Spousal support can be later altered under certain circumstances. If either of the spouses experiences a significant increase or decrease in income, suffers a major injury, or incurs a new substantial cost of some kind, then the court may consider raising, lowering, or even eliminating alimony. Contact our alimony attorney for a free consultation.
Annulment
An annulment, also known as nullity of marriage, is an alternative to divorce that can only be explored under special circumstances. Unlike a divorce, which dissolves a valid marriage, an annulment erases any record of the marriage by declaring that the marriage is or never was legally valid in the first place.
A marriage can never be considered legally valid in two main scenarios. One is if the marriage was incestuous, meaning the spouses were closely related to one another. The other is if one of the spouses was already married to another person, otherwise known as bigamy. A marriage can later be declared invalid if it can be proven one of the parties was forced into the marriage, was married under certain fraudulent circumstances which include the inability to have children or the sole pursuit of a green card, was of unsound mind, or was under the age of 18. However, it should be noted that a statute of limitations exists when it comes to an annulment. If a person who was married when they were under 18 wants an annulment, they must file for the annulment by the age of 22. Annulments that are requested on the grounds of fraud must be filed no more than 4 years after the fraud was discovered. Someone that feels they were forced to get married must file for an annulment no more than 4 years after the marriage took place.
If granted an annulment by the court system, it means the marriage is erased from legal record, which can make dealing with certain issues a bit tricky. While the father is often given automatic parental rights when he is married to the mother, these rights may disappear if the marriage is annulled, and the father may be forced to establish paternity before accessing custody and/or visitation. Also, the division of property becomes confusing, as communal property laws cannot be applied to people who were technically never married. Lastly, alimony cannot be granted between spouses that were never married.
Property Partition
Property partition is the part of the divorce where the parties decide how to split up their property. In California, which is a community property state, all property that was acquired by the couple during their marriage must be split 50/50, regardless of which partner actually did the work of acquiring the property in question. By a 50/50 split, the law means that the property’s net value received by each side must be equal for both parties, which also takes into account outstanding debts in the balancing. All property obtained by either party prior to the marriage or post-marriage, called separate property, belongs entirely to that individual. The division of property that is partially separate and partially community, called mixed property, can be more difficult. An example would be a car purchased by one party before the nuptials, where the car payments were paid jointly by the couple during the marriage. This property is usually divided according to an attempt to estimate how much of the property was paid separately and how much was paid communally.
In order for the court to make sure the partition of property is even and equitable, a form referred to as a Schedule of Assets and Debts must be filled out by each party. The two parties will then compare their forms, to see if they both agree on the value of the community property, as well as on what is considered community property and what is considered separate property. If you generally agree on these factors, you will probably be able to come to a reasonable agreement of the partition of property. If your two Schedule of Assets and Debts don’t line up at all, a judge will most likely have to settle the issue for you in a court of law.
Child Custody
Child custody is defined as the privileges and responsibilities each parent is afforded in looking after and managing their children. Child custody is often the most tense and contentious part of a divorce, as each parent naturally wants to spend as much time with their children as possible, and each parent may strongly feel as if they have more a right to the majority of their child’s time and a right to make important decisions for their child. If the two parents cannot come to a consensus regarding child custody, a judge or arbitrator will be compelled to make a decision for them. Get in touch with a La Mesa lawyer who has experience dealing with child custody issues in the area by calling 858-529-5150.
There are two main types of child custody: physical custody and legal custody. Physical custody defines with which parent the child will physically stay with each day. Physical custody may be joint, where parents share physical custody of their child and each is able to spend a significant amount of time with each child, or primary/sole, where one parent gets to spend the majority of the time with the child, and the other parents only gets to see their child through visitation, if visitation is allowed. Legal custody refers to control over the child’s life, in terms of healthcare, childcare, school choice, and other important life issues. This also may be joint, where parents share control over these decisions, or sole/primary, where one parent is in charge of these decisions.
Custody can be later modified, under certain circumstances. If one spouse is forced to move to a new faraway place, it can be proven one of the spouses abused the children or is dangerous to their physical/mental health, one of the spouses is regularly violating the terms of custody, or if the spouse is failing to have the child attend school and/or receive medical care, then the court may elect to change the prior custody agreement.
Postnuptial and Prenuptial Agreements
Postnuptial and prenuptial agreements are similar agreements regarding the terms of a potential future divorce, with the prenuptial agreement being agreed to before the nuptials takes place and a postnuptial agreement being agreed to once the marriage has already begun. The issues covered in a prenuptial or postnuptial agreement include many of the issues discussed above, including the partition of property and alimony.
Other issues that may be covered in a prenuptial and postnuptial agreements include changes to the normal procedure of inheritance rights (such making sure your child from your previous marriage and not your spouse is the primary inheritor), an agreement to keep certain debts separate, making sure your estate plan is carried out in a certain fashion, and the management of joint bank accounts, bill, expenses, and savings contributions. Issues that may not be covered in prenuptial or postnuptial agreements include child support, child custody, any provision that can be interpreted as incentivizing divorce, or penalties for adultery.
For a prenuptial or postnuptial agreement to be considered valid, it must exist in written form and have been signed willfully and knowingly by both parties involved. Also, the signing of the prenuptial agreement must have taken place in the presence of a notary public, both parties are required to have had access to records of each other’s finances, the receiving party must have been given seven days to review the document with their legal counsel, and must relatively fair and not totally one-sided.
While prenuptial agreements are generally written and signed as a general precaution before a marriage and not for a single reason, postnuptial agreement are often pursued for particular reasons. These include uncontrolled spending by one spouse, or a large increase in income by one spouse.
Domestic Partnership
If you are engaged in a domestic partnership, separating from your spouse is not done through a divorce, but through a relatively similar process. If done through the common format, the process for terminating a domestic process mirrors the divorce process. The two partners in a domestic partnership and their divorce lawyers are first given the opportunity to work out the terms of their separation on issues such as the partition of property, child custody, child support, and others. If they cannot reach a mutual decision, then the court will make a decision for them, as with a divorce.
A domestic partnership may also be terminated in a more expedient manner through what is called a summary dissolution. To qualify, both parties must want to end the domestic partnership, the domestic partnership must have lasted less than 5 years, you must have no children or own buildings/land together, and you must have minimal amounts of debt and assets together. To complete this process, you must read the Secretary of State brochure on the topic, fill out the Notice of Termination of Domestic Partnership, complete a property agreement, have your forms reviewed by a legal professional such as a qualified La Mesa attorney who has experience looking over such forms, and send the forms to the Secretary of State’s office. If approved, the domestic partnership will end 6 months after the termination is filed.
Find a La Mesa Divorce Attorney Near Me
While hopefully you feel as if you have a better understanding of divorce law after reading this document, you still most likely feel as if you want the direct advice of an expert. Call 858-529-5150 to have an enlightening dialogue with a La Mesa divorce attorney who works with San Diego Divorce Attorney, who can help you through each and all of the steps of divorce in San Diego County.
