LEGAL SERVICES

How is a dissolution (divorce) handled in California? California is a community property state.  In general, property you or your spouse acquired during your marriage belongs to both of you equally. 

Community property is generally defined in California Family Code §760, which states:
“Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”

The law requires the court to divide this property equally between you.  However, there are exceptions to this. Complexities can arise in the division of property when the parties disagree on valuations or when commingling of separate and community property has occurred. Conflicts may also occur when both parties desire to be awarded the same assets.

What is the difference between Divorce and a Legal Separation? Legal separation cases are where the parties have the same opportunities to divide all of their assets and debts, get custody orders, spousal support, and child support orders made, but at the end of the case, the parties are still legally married to one another.  

Why would one want to file for Legal Separation rather than a divorce?  – Many different reasons, such as being able to file joint tax returns, being able to continue to have joint medical insurance coverage, religious reason, and other personal reasons.

Is date of separation important?  In a divorce or legal separation case, the date of separation is important for a variety of reasons.  Separate property can start after the date of separation, so for example, if you are working at a job, the income that you make after your separation date can be held as your separate property in many cases.  Same with any contributions made after your date of separation to your pension and/or other retirement accounts.  Date of separation will also help define the length of your marriage.  This is important for a variety of issues as highlighted below.  

How do you determine the date of separation? The court has broad discretion on this issue, like most issues in Family Law, and each case is unique.  Date of separation is generally defined in California Family Code §70:

“(a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: (1) The spouse has expressed to the other spouse the intent to end the marriage. (2) The conduct of the spouse is consistent with the intent to end the marriage. (b) In determining the date of separation, the court shall take into consideration all relevant evidence. (c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.  

Can you be considered separated even while you live at the same house?  Yes, it can be possible.  The key issues though are to be able to qualify your date of separation pursuant to California Family Code §70.  The parties do not necessarily need to be actually physically separated and apart to qualify for separation. 

Length of Marriage is important in a divorce or legal separation case.  Why is length of marriage important? The length of marriage is based upon date of marriage and date of separation.  Generally, if a marriage is less than 10 years long, it is considered a marriage of short duration.  Generally, if a marriage is more than 10 years long, it is considered a marriage of long duration.  Length of marriage has significant impacts on division of assets, and on issues of how long spousal support shall last.  

How long will you have to pay spousal support in a less than 10 year marriage?  Generally, you could be required to pay spousal support in a short term marriage for ½ of the life of the marriage.  

How long will you have to pay spousal support in a marriage more than 10 years?  Generally, you could be required to pay spousal spousal support in a long term marriage for as long as the one spouse needs the support and the other spouse can pay.  However, it all depends of many different factors and each case is unique.

What if you were never married to the person you had children with? This is called a parentage or paternity matter, which are cases where the parties are not married and have a child or children together.  Paternity actions are resolved in the family court along with child support and other issues related to a child.

What are the different types of child custody?  There are 2 main types of custody in California: legal custody and physical custody. Legal child custody allows the parent the right and responsibility to make decisions regarding the child’s health, education and welfare.  In other words: who is legally responsible for that child.  Physical custody pertains to time sharing and where the child or children live.  In other words: where the child physically is and who do they stay with.   Courts in California generally look to see what is in the best interest of the child.   The Courts have discretion as to what they can order related to custody and it is somewhat of a subjective issue. 

How do the Courts calculate child support?  California family law provides that parents must contribute to the support of their children according to a detailed formula. Many courts in California use a computer program(s) to help them calculate what is called a “guideline child support order.”  One of the primary objectives for the Courts is to ensure that every child is financially cared for by their parents.  Determining the correct dollar amounts for some of the factors that determine guideline child support can be complex. Regardless of what the court ultimately awards, the amount of child support is not a permanently fixed amount. It is always modifiable. 

Whether a business is found to be separate property or community property, a review of valuation is usually necessary. A court may also use a variety of different approaches regarding their analysis of a business.  

A business is generally valued as close to the date of settlement or trial as is reasonably practical, but there are exceptions to this rule. Under some circumstances, a business may be valued on the date of separation or another alternate valuation date. The businesses that are valued on the date of separation are generally businesses where the operator-spouse is the dominant primary driver of the business revenue. 

If a separate property business is at issue, then the court will look at whether there was an increase in the value of the business during marriage. If so, the court will then determine whether to reimburse the community for a portion of the increase in the value during the marriage.

Can you mediate a divorce or legal separation action?  The answer is most definitely.  Mediation is about negotiation.  Usually the parties agree prior to entering a mediation that everything discussed in a mediation is confidential.  That way the parties can freely discuss the case with one another and the pending issues.  A mediator’s job is to act as a neutral party, and to act as someone that can try to help the parties reach an amicable agreement with one another.  A mediator does not represent either side.  

Can I bring my attorney to a mediation?  Yes.  In many instances, each party has their own attorney when they go to a mediation. That way they can also have their own legal representation at the time of mediation for help in the negotiations.  

Under the right set of circumstances, mediation of a divorce or legal separation can be a very successful and cost effective way to resolve conflicts.  It is a viable option for couples who can still communicate with one another, and who are both willing to find a resolution in the most expeditious way possible.   Mediation can occur at any stage of the case and it can often lead to the effective use of time and financial resources if approached by the parties correctly.  

How is spousal support (which is also known as alimony) calculated in California?  In a divorce or legal separation case, often there are questions regarding spousal support. Family law courts have wide discretion when it comes to determining the amount of spousal support. The objective of temporary spousal support is to maintain the financial status quo of the parties to the extent possible, whereas permanent support is based on the factors listed primarily in California Family Code §4320.

What is considered domestic violence in California? Domestic violence is abuse or threats of abuse between persons who have been in an intimate relationship or people who are related by blood.  Domestic violence comes in a variety of different forms that include but are not limited to: physical, emotional, psychological, sexual, and/or financial.