Frequently Asked Questions
WHAT IS A DISSOLUTION OF MARRIAGE?
A dissolution of marriage (commonly referred to a divorce) is the legal termination of marriage. A marriage can be terminated in California for irreconcilable differences or incurable insanity. No fault is required (which means no blame can be placed on the other party, even for infidelity issues, when asking the court to terminate the marital contract)*.
*However, division of property may be affected by the bad faith acts of the other party.
WHAT IS A LEGAL SEPARATION?
Legal separation is a separation of the parties legally. The court adjudicates all of the issues between the parties, including child custody and visitation, child support, spousal support, and property division. The only issue the court does not address is the marital status of the parties. When the parties obtain a judgment of legal separation, they are still married to each other. There are no minimum jurisdictional requirements for filing a legal separation. And, after the requirements are met, a legal separation can be modified into a dissolution if desired.
WHAT IS AN ANNULMENT?
An annulment is a method of voiding the contract of marriage. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted if the initial marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect. However, even though the marriage is canceled, there may still be property issues relating to the innocent spouse.
DOES AN INDIVIDUAL HAVE TO GO TO COURT TO OBTAIN A DISSOLUTION OF MARRIAGE?
Only a court of law can grant a divorce decree, legal separation, nullity, termination of domestic partnership or other form of division a marriage. In addition to terminating the marital status, the court also has jurisdiction to resolve the other issues which are intertwined in the existing marriage including custody and visitation rights, division of property of the marital estate, spousal support, child support, restraining orders, etc.
However, if the parties agree to divorce by way of a written agreement, it is possible for the parties to avoid actually walking into the courthouse during the dissolution process.
WHAT IS THE FIRST STEP IN FILING FOR DIVORCE OR DISSOLUTION?
The first step is filing a summons and petition with the appropriate court. The appropriate court is determined by what is called subject-matter jurisdiction, which would include satisfying the requirements of residency within both the county (three months) and the state (six months)*. Without these minimum requirements being met, the court does not have the jurisdiction to hear the matter and cannot make an order or decree of divorce, dissolution or any other orders terminating the marital state. Legal separation requires only that one party be a resident of the state and county.
*There are additional jurisdictional requirements when requesting child custody and visitation orders.
HOW LONG DOES THE PROCESS TAKE TO FINISH?
The earliest date that the marital status may be terminated (each party is returned to the status of a single person) is six months from the date the other party is served with the petition. However, if there are contested issues in your case, it can be several years before all of the issues involved may be resolved by the court. Cases that are resolved by settlement are commonly completed years before contested matters that are resolved by trial.
WHEN CHILDREN ARE INVOLVED, WHAT FACTORS DOES THE COURT CONSIDER WHEN AWARDING CUSTODY AND VISITATION?
The overall goal of the court when making orders regarding children is “the best interests of the children.” However, many factors are included in the court review of the facts when determining what is in the best interest of the child. The objective of the court is to allow for continuing and frequent contact with both parents. However, the court may limit contact when addressing issues such as such as domestic violence (physical and/or emotional), alcohol and/or drug abuse, or actions by either parent that threaten the well-being of the children.
WHAT IS THE DEFINITION OF JOINT CUSTODY?
There are two types of custody in a child custody order: legal and physical. Legal custody involves the decision-making in areas such as education and medical treatment as well as issues regarding the safety of the children. Physical custody involves the actual time each child spends with each parent and the day-to-day issues that are raised during those physical custodial timeshares. It is common for the court to recommend that the parties timeshare as their respective custodial periods.
CAN A CUSTODY OR VISITATION ARRANGEMENT BE CHANGED AFTER THE COURT HAS MADE AN ORDER OR JUDGMENT?
A child custody or visitation arrangement may be changed until the child reaches the age of majority. If the order or judgment was final, the parent requesting the change must show a change of circumstances affecting the best interests of the children. If the order or judgment was temporary (also referred to a pendent lite), then a change of circumstances need not be shown and the court will look at the best interest of the children only.
HOW IS PROPERTY DIVIDED?
California is a community property state. Community property is all property that is acquired by either party during their respective marriage (with some exceptions). Community property will be divided equally (50-50) by the court if the parties are not able to come to an agreement.
HOW IS SPOUSAL SUPPORT DETERMINED
Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court’s discretion.
In ordering spousal support under this part, the court may consider many factors. Three main factors that the court considers are the standard of living during the marriage, the supporting spouse’s ability to pay support, and the receiving spouse’s continuing need for support. Some additional factors that the court reviews are ability to earn, the parties’ health, custody orders and how they affect the supported spouse and domestic violence.
A REGISTERED DOMESTIC PARTNERSHIP?
A domestic partnership is established when persons meeting the criteria specified by Family Code section 297 file a Declaration of Domestic Partnership (Form NP/SF DP-1) with the Secretary of State. A copy of the declaration and a Certificate of Registration of Domestic Partnership will be returned to the partners after the declaration is filed.
In California, committed heterosexual domestic partners can register their relationships when one party is 62 or older. This secures important rights and responsibilities related to health care decisions, inheritances, family coverage for employer-provided benefits, and matters such as those above. The California Declaration of Domestic Partnership can protect your rights and those of your children in times of family crisis. We are familiar with the differences between California and federal law regarding the rights of unmarried partners. We use our knowledge to advise clients about the choices they face.