DIVORCE & LEGAL SEPARATION
What are the grounds for divorce or legal separation in California?
In California, there are two grounds:
- Irreconcilable differences. There is no “proof” required to get divorced on this ground.
- Incurable insanity (almost never used). The court requires medical proof that one spouse was insane when the divorce or legal separation petition was filed, and proof that the spouse remains incurably insane.
What are the residency requirements for divorce and legal separation?
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 to file for legal separation.
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. Lawyers refer to these rules as the “ATROS” – Automatic Temporary Restraining Orders. The ATROS are printed on the back of the Summons (which goes with the divorce/legal separation petition when filed).
Under the ATROS, 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, extraordinary expenditures are made—and be prepared to account for such expenditures to a judge.
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 in your county for three months before filing.
What’s the difference between Legal Separation, Divorce and Annulment?
Dissolution (Divorce): The court terminates your marital status (declaring you no longer spouses), which then significantly affects your tax filing status, health and life insurance (if you are on your spouse’s insurances as a “spouse” – that terminates and almost always cuts off your insurance benefits), among other affects. At your request, the court will also divide your property and debts, and issue orders relating to child custody, visitation, child support and spousal support, and if necessary, a restraining order. When your case is handled through Smart Court®, your settlement will be filed with and approved by the court, and converted to a court order (called a “judgment”). Through the Smart Court® process, you never have to appear in court.
Legal Separation: You may have religious, insurance, tax or other reasons for wanting a legal separation instead of a dissolution (divorce). If you obtain a legal separation, you and your spouse will remain married, but the court can divide your property and debts, and issue orders relating to child custody, visitation, child support and spousal support, and, if necessary, a restraining order. When your legal separation is handled through Smart Court®, your settlement will be filed with and approved by the court, and converted to a court order (called a “judgment”). Through the Smart Court® process, you never have to appear in court.
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. Note that fraud and deceit are typically very difficult to prove, and the evidentiary requirements are very high. If you want an annulment, however, you will have to appear in court for a trial.
Is there a simplified process for getting a divorce?
Yes. California has a process called summary dissolution. If you qualify for a summary dissolution, there is less paperwork to file and you will not have to appear in court. You may be eligible for summary dissolution 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, excluding automobiles.
- The value of either party’s separate property amounts to less than $25,000, excluding automobiles.
- Your combined debt does not exceed $4,000, except for an auto loan.
- 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.
After my divorce/legal separation papers are filed with the court, can I serve my spouse with the papers?
No. Copies of the Petition and Summons, and a blank Response, must be officially delivered (served) to your spouse by someone other than yourself who is over the age of 18. When you are mediating your case through Smart Court®, we help you get the initial divorce papers drafted/filed (the Petition and Summons) and provide a “friendly service of process” on your spouse (agreed in advance). We file the “proof of service” document with the court for you, so you and your spouse can get on with mediation and get your case settled.
What happens after the divorce/legal separation papers are served?
The Summons is a paper that notifies your spouse that you are filing for a divorce or legal separation, and that he or she has 30 days in which to file the Response. When you are in mediation with Smart Court®, you and your spouse stipulate that the Response deadline will be suspended, so you can focus on resolving your case out of court.
After the initial papers are filed, one or more of the following steps may occur:
- Financial Disclosures. The court requires you to complete disclosure declarations that provide information about your income, expenses, assets and debts (Income and Expense Declarations and Schedules of Assets and Debts). Smart Court® provides you with these required forms, and helps you and your spouse “serve” the documents on each other. The court requires proof that your disclosures have been served on your spouse – Smart Court® will provide that proof of service to the court, on your behalf. Your Smart Court® Mediators use the Financial Disclosures to prepare for your sessions with them, and to resolve your case.
- Temporary Orders. At any time during a divorce or legal separation case, you or your spouse may ask for a hearing so that a judge can decide any temporary child custody, visitation, support, requests for attorney fees or restraining order disputes. Such hearings are called Request for Order (“RFO”) hearings. These orders are considered “temporary” because they are made after the case has been initiated, but prior to settlement or trial. When you bring your case to Smart Court®, your Mediators can help the parties craft interim agreements to stabilize your particular situation while you get through mediation. These are called “Stipulation and Order” Agreements (see below).
- “Stipulation and Order” Agreements. These are negotiated, short-term agreements on issues for temporary orders such as custody, visitation, support, and the appointment of a neutral expert to evaluate the value of an asset (like a business). A “Stipulation and Order” states the interim terms agreed to by you and your spouse, and is signed by all the parties and by the judge. When the judge signs it, it becomes an official order of the court. With Smart Court®’s assistance, you’ll get temporary agreements where necessary, eliminate the expense of a court hearing on the issues, and never have to go to the traditional court (and wait for weeks to have a hearing).
- Settlement Agreements. We work on permanently resolving the issues raised in your case. When you reach agreement at mediation, your Smart Court® Mediators and paralegals draft a comprehensive settlement agreement which is called a “Marital Settlement Agreement” (also referred to as an “MSA”). After the MSA is completed and signed, Smart Court® sends it to the judge for you – you do not have to appear in court.
- Trial. If you are unable to reach an agreement, you will need a judge to make the decisions for you. This is normally done by having a trial. When you go to trial in the traditional court, you and your spouse will appear in court, present witnesses, your testimony and all relevant evidence, and the judge will make the decisions. A faster, private alternative to trial is Smart Court® Arbitration or Private Judging. These are private “trials” conducted at Smart Court®’s comfortable, private offices. The Smart Court® neutrals decide your case, and many of the rules of “traditional” court are relaxed so your case is finished much faster and out of the public eye.
- Judgment. A settlement agreement and judgment can be entered at any time, but you would not be divorced until at least six months after your spouse was served with the petition. The court does not automatically end your marriage when the six months have passed (you have to request it). You cannot legally remarry until you obtain a judgment even if the six months have passed. If you want to remarry, or you have some other reason for wanting to be single at the end of six months, a judge can dissolve your marriage even though some property or other issues are not yet settled.
Not all of the steps above will be necessary in every case. For example, you may simply reach an agreement and get a judgment without the need for temporary orders of any kind.
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 – and this is what the courts prefer. Smart Court® helps you and the other parent agree on a parenting plan, and it is included in your settlement agreement. Keep reading to learn about the differences between physical custody, legal custody and visitation.
There are two primary types of custody: Legal and Physical
Legal Custody refers to the person having the rights and responsibilities to make important decisions about a child’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. Legal Custody can be “joint” or “sole”:
- Joint Legal Custody. This is where the court orders that the parents share legal custody of a child (i.e., they share the rights and responsibilities to make important decisions about the children’s health, education and welfare).
- Sole Legal Custody. This is where the court orders that only one parent has the right to make decisions related to the health, education and welfare of the children. Parents typically share joint legal custody, unless one of the following is true:
- The parents are completely unable to make decisions together;
- One parent is deemed unfit;
- One parent is incapable of making decisions regarding the upbringing and general welfare of the child; or
- It would be in the child’s best interests for one parent to have sole legal custody.
Physical Custody refers to which parent or parents the children spend time living with on a regular basis. When deciding how custody should be divided and whether parents will have visitation rights, courts will first need to determine what is in the child’s best interest. For example, if a parent has a history of domestic violence or abuse, the judge may order that any and all visits with the child be supervised by an approved third party. In some extreme cases, the judge may find that it’s in the child’s best interest not to visit the abusive parent at all. Physical Custody can be “joint” or “sole”:
- Joint Physical Custody. This is where the court orders that both parents have significant periods of physical custody. If a child’s time is divided equally between the parents, or close to equally, the parents are sharing joint physical custody.
- Sole Physical Custody. This means that a child resides with one parent, subject to the court’s authority to order visitation time with the other parent.
What happens if we cannot agree on custody or visitation?
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. Through Smart Court® Mediation, most parties are able to amicably resolve custody and visitation issues, instead of engaging in a long, expensive custody battle at the courthouse.
You and the other parent are both responsible for supporting your children if they are under age 18. The duty to support the child may extend beyond age 18 if certain conditions are met (such as, your child is 18 but has not yet graduated high school). In addition to child support, parents may be required to pay other expenses for the children, such as childcare, medical care and/or travel between households.
In California, the amount of support to be paid by one parent to the other is based on established “guidelines” (often referred to as “Guideline Support”). Both the courts and Smart Court® neutrals use the “XSpouse” and/or “DissoMaster” computer programs that calculate Guideline Support based on the statutory “guideline” formulas established under California law. Significant factors included in the support calculations are each parent’s income and the amount of custodial time each of you spends with the children. Such support (child support only) does not need to be reported as income for federal and state tax purposes, and the parent paying such support is not entitled to a tax deduction. Smart Court® Mediation afford you and your spouse to negotiate child support amounts above or below what the support calculators say, as long as the amounts agreed upon are sufficient to meet the needs of your children.
When a parent is likely to not pay support timely (or at all), it is routine for the court to make a wage assignment order, so that a parent’s employer is required to make child support payments directly from the parent’s wages.
When you meet with the Smart Court® Mediators, several support calculations will be run to determine the amount of child and/or temporary spousal support you may receive (or be obligated to pay) under several scenarios. Other tricky issues related to support arise when a parent is self-employed, is in a “cash” business or receives other forms of compensation such as bonuses, commissions and monetary “perks”. All those issues can significantly affect child and spousal support.
To run some calculations of your own, check out this handy support calculator.
What is spousal support? Is it the same as alimony?
Spousal support (also known as partner support for registered domestic partners) 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 or legal separation. Usually, 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.
In traditional court, 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 needs spousal support. Since circumstances can change, (you could become ill, for example, or lose your job), as part of your Smart Court® mediated settlement agreement, you may have the court 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. Of course through Smart Court® mediation, you and your spouse can always get assistance in negotiating any changes to your original MSA later, when circumstances have changed (this is called “Post Judgment” mediation). Smart Court® Post-Judgment mediation is much faster than going back to the traditional court to modify the old orders.
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. Through Smart Court® Mediation, you and your spouse will be able to negotiate a property division instead of having a government judge tell you how it will be divided.
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. Sometimes during a case one spouse pressures the other spouse to divvy up some of the assets and debts, in a piecemeal fashion. We do not recommend this, as the piecemeal approach usually leads to an inequitable overall division at the end of the case. If the case goes to trial, 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 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 or legal separation. 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.