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Residency Requirements Either party to a marital dissolution in California must have been a resident of the state for 6 months and a resident of the county where the case is filed for at least 3 months. There is no minimum residency requirement to file for a legal separation. New residents to California who wish to begin the dissolution of their marriage often file for a legal separation to establish a court’s jurisdiction over the case and later file a motion to amend the case to a marital dissolution. [CA Family Code §§ 2320-2321] Legal Grounds for a Marital Dissolution California is a "no-fault" state. A party must simply allege "irreconcilable differences" or "incurable insanity" to establish grounds for a dissolution of marriage. Irreconcilable differences are those grounds determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. To prove incurable insanity the court must determine, based upon competent medical or psychiatric testimony, that the insane spouse was at the time the petition in the court was filed was and remains incurably insane. As a general practice, the court rarely questions beyond a petitioner’s own determination that irreconcilable differences exist. [CA Family Code §§ 2310-2312]. Child Custody/Visitation "Joint Custody" means joint physical and joint legal custody. "Joint Legal Custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of the child. "Joint Physical Custody" means that each parent shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to the "best interest of the child." "Sole Legal Custody" means that one parent shall have the right and responsibility to make the decisions relating to the health, education and welfare of a child. "Sole Physical Custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. [CA Family Code §§ 3002-3007] In determining the best interest of the child the court shall consider the health, safety, and welfare of the child, including any history of abuse by one parent or any other person seeking custody against any of the following: (1) any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary (2) the other parent; (3) a parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship. [CA Family Code § 3011] Order of Preference in Awarding Custody The court has broad discretion in determining the custody of a child. However the law guides the court with the following preferences: 1. To both parents jointly or to either parent. The court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent and shall not prefer a parent as custodian because of that parent’s sex. The court may require the parents to submit to the court a plan for the implementation of the custody order. 2. If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. 3. To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. Note: Before making an order granting custody to a person other than a parent without the parents’ consent, the court shall make a finding that granting custody to a parent would be detrimental to the child and would serve in the best interest of the child. [CA Family Code § 3040] Children’s Wishes If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child. [CA Family Code § 3042] Prior Violence Against a Child or Party Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. [CA Family Code § 3044] Thus, a person who has been found to have perpetrated such domestic violence, must prove that it would, in fact, be in the best interest of the child for him or her to be the caretaker of the child. The court may award joint custody, but name one parent as the primary caretaker of the child and one home as the primary home of the child. [CA Family Code § 3086] Visitation Rights The court must grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child. The court may grant reasonable visitation to any other person having an interest in the welfare of the child. [CA Family Code § 3100] In cases where a protective order has been issued by the court the court shall consider whether the best interest of the child requires that any visitation by that parent shall be limited to situations in which a third person, specified by the court, is present, or whether visitation shall be suspended or denied. [CA Family Code § 3100] MEDIATION: Each court is required to make mediation services available in cases where child custody or visitation is in dispute by the parties. As a matter of practice, most courts will refer any disputed matter to mediation prior to making any final orders regarding custody or mediation, however, the court may make temporary orders pending recommendations from a mediator. Community Property vs. Separate Property The characterization of property on the surface appears to be simplistic. However, many disagreements regarding the factual determination as to the character of property often arise. Community property is defined as all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in California. Separate property includes all property owned by the person before marriage, and all property acquired by gift, bequest, devise, or descent, including the rents, issues, and profits thereof. Thus, property acquired before the marriage or after separation or property acquired by gift or inheritance is generally construed to be separate property, including the benefits from such property (i.e. rents, royalties, dividends, gains, etc.). Real property refers to real estate. Personal property is a broad definition that encompasses any other form of property right, including, personal effects (i.e. household furniture, appliances, clothing, jewelry, vehicles, cash, etc.), intangible property (i.e. retirement benefits, bank accounts, stocks, bonds, mutual funds, promissory notes, deeds of trust, accounts receivable, etc.), and intellectual property (i.e. patents, copyrights, etc.). Earnings during the marriage and acquisitions of any property from earnings during the marriage are community property. [CA Family Code § 760] The issue becomes complex when a party owned an interest in property prior to marriage and then used earnings after the marriage to make capital improvements or reduce debt on the property. Title to property is merely a presumption as to its character as separate property. Evidence of improvements or debt reduction from a community property source during the marriage may create a community interest in the property. For example, Wife owned a house prior to marriage worth $200,000 and owed $150,000 at the time of marriage. Therefore, she owned equity and a separate property interest of $50,000. During her marriage to Husband, the couple paid down the debt by $50,000, thereby creating a community property interest in the property equal to $50,000. Assuming no increase in the real estate market during the marriage, Wife owns a separate property interest in the home equal to $50,000 and the couple owns a community property interest in the home equal to $50,000, assuming that they had no other agreement regarding the ownership rights to the house. If the real estate market resulted in an increased value of the property overall, then in the absence of an agreement between Wife and Husband, the court would have to determine what portion of the increased equity belongs to Wife and what portion belongs to the "couple" based upon evidence as to how and when the market prices affected the rights of the parties given the particular facts of the case. Exceptions may exist for property acquired by a married woman prior to January 1, 1975. [CA Family Code § 803]. Also note that agreements between spouses either before, during, or after the marriage may affect the characterization of property as either separate or community. If you have particular questions regarding your unique situation as to your rights and obligations regarding separate property and community property, you should discuss them with an attorney or contact one of our attorneys. Property Division/Debt Division/Reimbursements In the absence of a written agreement, or oral stipulation in open court, among the parties, community property is equally divided. The value of the property is determined as near as practiable to the time of trial. The court has discretion to award a community property asset to either spouse, however, one half of the value of the community property asset must be credited to the other spouse in such a manner as to result in an equal division of the community assets. [CA Family Code §§ 2550; 2552; 2601;2602] Debts incurred by either spouse before the date of marriage are the responsibility of the spouse who acquired the debt. Debts incurred after the date of separation but were incurred for the common "necessities of life" for the benefit of the spouse or children of the parties for whom support may be ordered, but for which no order exists, are subject to the discretion of the court based upon the needs of the parties and each party’s ability to pay the debts. Debts incurred by either party after separation for any nonnecessities as indicated are the responsibility of the person who accrued the debt. [CA Family Code §§ 2621-2623] Other exceptions regarding the character is community property and debts exist. If you have any questions, consult with an attorney or contact one of our attorneys. Spousal Support Similar to child support, the court may use a prescribed formula to determine "temporary spousal support" during the pendancy of a family law proceeding. Upon conclusion of the case, however, the court may not rely upon any prescribed formula. Rather the court must consider the following issues: (A) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. (2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. (3) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. (B) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. (C) The ability to pay of the supporting party, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living. (D) The needs of each party based on the standard of living established during the marriage.
(F) The duration of the marriage. (G) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. (H) The age and health of the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party where the court finds documented evidence of a history of domestic violence. (I) The immediate and specific tax consequences to each party. [CA Family Code § 4320] Child Support The father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances. [ CA Family Code § 3900] The duty of support continues to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first. A parent may, however, agree to provide support beyond this time. [CA Family Code § 3901] The court may order either or both parents to pay an amount necessary for the support of the child. [CA Family Code § 4001] Pursuant to section 4055 of the California Family Code the state has set forth a uniform guideline for determining child support orders based upon the income of the parties, the percentage of time the child spends with each parent, the tax consequences to the parties, and certain credits allowed against the income of the parties to determine the net disposable monthly income. [CA Family Code §§ 4058-4064] To determine the amount of support, courts generally use a computer calculation based upon the formula set forth in the Family Code. An estimate of this amount can be provided to you by completing the Income and Expense Declaration as part of your marital dissolution. Keep in mind, however, that the court will also base the amount of support upon your spouse’s Income and Expense Declaration filed with the court. Therefore, the amount calculated by our firm is only an estimate and should not be relied upon for budgeting purposes. A fee of $50 will be charged for this service. |
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