A divorce is potentially one of the most traumatic and stressful experiences that you can go through. There are so many statutes and laws relating to the situation that it is easy for anyone to quickly become overwhelmed. It is also possible to be completely outmatched if your soon-to-be former spouse has retained a legal team; you have to turn to a crack law firm like San Diego Divorce Attorney to ensure that you can stand up for yourself and fight back. San Diego Divorce Attorney can help you in your divorce proceedings; we have extensive experience serving clients both in the city of Poway and the entire San Diego County area.
When Is A Divorce Attorney Needed?
There are some couples who are able to go through their divorce proceedings in a relatively civil and calm manner. This is not an entirely common scenario, but it does happen from time to time. Because marriage is essentially a legal contract with a variety of obligations (financial and otherwise) attached to it, when a couple gets divorced there are various legal questions that must be addressed.
The final and binding arrangement that is reached between the two former spouses is known as a divorce settlement. It is signed off by a family court judge and sets forth the various criteria and legal obligations that must be adhered to following the dissolution of the marriage.
This includes the division of finances as well as custody of any children. States that are known as community property states require that any debts, assets, and property that are acquired throughout the course of a marriage then be divided between the two spouses at the time of divorce. Community property states include California, Idaho, Louisiana, Arizona, Nevada, Washington, New Mexico, and Texas. Residents of Poway are part of a community property state, and as such are subject to the specifics of California’s divorce statutes.
A standard, boilerplate divorce settlement usually requires that spouses split all these finances, including debts accrued during the marriage, right down the middle. To begin the divorce proceedings, one member of the marriage (referred to as the petitioner) must actually file for divorce with the Superior Court of the county where the couple lives. For couples living in Poway, they would have to go to the Central Division of the Superior Court located in the city of San Diego at 1100 Union Street.
The spouse who must respond to the divorce petition is known as the respondent. The divorce statutes in California automatically classify all divorces filed in the state as no-fault divorces. This means that the petitioner is not legally required to have proof or evidence that the respondent was at fault for the divorce (for example, for fraud and/or adultery). Petitioners most commonly cite irreconcilable differences as the reason for the divorce petition. This simply means that the marriage is not working and that the two spouses are unable to continue.
It is absolutely essential that a divorce attorney represent you at every step of the way. This includes instances where you may be the petitioner or you may be the respondent. Divorce law (also referred to as matrimonial law in the legal literature) varies from state to state. For a resident of Poway or San Diego County, knowing how to navigate the legal maze of a state like California, which is both a community property state and a no-fault divorce state, requires a serious breadth of experience and know-how. If you are the petitioner, for example, it is best to retain a divorce attorney the moment you are considering filing for a divorce. They can help you analyze the assets, property, finances, and debts that will have to be divvied up once the divorce process begins.
The Types of Divorces
Once the petitioner files for divorce, the respondent must determine how to proceed. It is highly advisable that you retain a divorce attorney the moment you are served with divorce papers. This will allow you to properly defend yourself and ensure that you are not taken advantage of in the proceeding divorce settlement.
There are two basic kinds of divorces:
- Uncontested divorce. This occurs when both parties, the petitioner and respondent, are in agreement not only to the terms of the divorce but as to whether the divorce itself is legally legitimate. If both parties agree then the proceedings generally go on without a hitch and a judge can sign off on the terms of the divorce settlement without the various parties descending into infighting and mutual acrimony.
- Contested divorce. This occurs when neither party can agree on either the terms of the settlement or the actual legality of the divorce. In other words, a respondent can hypothetically argue that the divorce petition itself is not legal. These cases can quickly become complex and frequently require greater legal resources.
It is important to note that whether a divorce is contested or uncontested, it is always in your best interest to hire a divorce attorney. This ensures that the settlement will be fair and balanced.
Furthermore, at the heart of most contested divorces is a disagreement over what is known as ancillary matters. These are the specific terms of the divorce settlement. They include the division of finances (including debts, property, and/or assets), the presence and amount of child support and/or alimony payments, and custodial agreements for any children. Nearly every contested divorce that turns heated is because of a disagreement over these ancillary matters.
Mediation and Arbitration
There are several options for reaching a divorce settlement over the ancillary matters. The couple may go into mediation, whereby an impartial third-party assists the couple in coming to terms that are satisfactory to both. This is a bit like having a moderator during a heated debate; their job is solely to keep all parties civil and level-headed during a process as emotional and traumatic as a divorce.
One or both parties in the divorce can back out of the process at any time. It is generally used as an alternative to going to family court, although a family court judge will still have to sign off on the terms reached. Once they do, the resultant agreement is legally binding. The ultimate goal of mediation is to reach an official conclusion in the divorce settlement. However, retaining a divorce attorney is crucial during these mediation sessions as it is always important to have a legal representative that has exclusively your best interests in mind.
If mediation fails, the couple may opt for another process that is referred to as arbitration. This occurs when an objective third-party who is well versed in divorce law, most frequently a family court judge who is retired, oversees an informal hearing with the couple and their attorneys. The third-party will review any and all relevant documentation, making it absolutely essential to have a divorce attorney. The results of arbitration are legally binding; the arbitrating third-party will make a ruling that must be obeyed by the couple.
If both of these options fail, then the matter can always be taken to trial. Divorce law is part of the state’s civil code, meaning that it would occur in a civil circuit court before a judge who works specifically for the family court. Residents of Poway would be required to take their divorce trial to the Superior Court of San Diego County. This option should be considered a last resort; less than 2% of California divorce cases end up in family court. A trial is usually quite expensive, psychologically draining, and potentially traumatic, particularly if there are children involved.
Prenuptial and Postnuptial Agreements
In certain cases, the couple can potentially avoid all this unpleasantness by having legally binding agreements in place. The specifics of ancillary matters are almost always what create contested divorces that result in mutual acrimony. This is particularly true of the couple’s finances.
A prenuptial agreement is a legal agreement that is signed and activated before the marriage actually takes place. It is most frequently implemented when one or both parties have high incomes or extensive properties and/or assets. These known as premarital assets and/or premarital property.
As mentioned above, California is a community property state. That means that the standard divorce settlement for the division of said finances is 50/50. Certain types of premarital assets are
- Assets that were owned before the marriage
- Any gift given specifically to one of the spouses
- Any inheritances that were earned
- Damages that were awarded in a lawsuit
- Assets and/or property that is explicitly protected in a prenuptial agreement
However, a family court may rule that the premarital assets become marital assets. In these situations, the divorce settlement will split these assets evenly between both parties. A prenuptial agreement can ensure that this does not happen and that premarital assets remain separate. It must be handled by a divorce attorney as a judge can also find a prenuptial agreement not legal if it is not properly developed and written.
If one of the couples acquired many assets throughout the course of the marriage and wishes to keep that property separate in the event of a divorce, a divorce attorney can also develop a postnuptial agreement. This is similar to a prenuptial agreement but is implemented after the couple has already married. This is frequently used in cases where one of the parties may have started a business that would be crippled or bankrupted in the event of splitting it during the course of a divorce.
The terms and conditions of a postnuptial agreement must be agreed to by both parties, meaning that both have to sign off on it. Furthermore, the postnuptial may not address certain ancillary matters, including anything having to do with child custody, visitation rights, alimony, and/or child support.
Alimony and Child Support
Alimony is the sum of money that is paid to one of the spouses following the divorce. It can also be referred to as spousal support. It is addressed directly in California divorce law under Family Code 4320. This statute specifies that there can be one spouse who is the primary provider and source of financial support and that this spouse has a legal obligation to provide some level of financial assistance to the other spouse. The providing spouse has a higher income than the other and, in some cases, is the sole source of income in the marriage.
The amount of alimony will depend on a variety of factors. If the spouse seeking support has no income and has primary custody of any children, then payments will be greater. A family court judge will rule on the specifics of alimony and the exact sum is generally determined during a family court hearing. A divorce attorney is essential if you are either providing or seeking spousal support as they can effectively argue your case to the judge.
Child support is also a legal obligation following a divorce. Under statute 3900 of the California family code, the responsibility of supporting any children falls to both parents equally. This includes financial obligations as well as the time and money required to rear, educate, and care for children. One parent usually has primary physical custody of the child, meaning that the other parent must provide financial support. This applies even in cases where there is joint custody, meaning that both parents have equal input into the children’s lives, as it is virtually impossible to have a child live exactly half the time with one parent or the other.
Find a Divorce Attorney Near Me
The specifics of a divorce settlement require a deft knowledge of divorce law. San Diego Divorce Attorney has attorneys on staff who are knowledgeable, experienced, and sensitive to your needs. Through our years of experience, we have learned how to keep a divorce from being absolutely devastating for our clients. If you are a resident of Poway or live in the greater San Diego County area, get a free consultation today at 858-529-5150.
