- What is a divorce or dissolution?
- Who can file for a divorce?
- Are there common Law Marriages in California?
- What is the difference between a contested and an uncontested divorce?
- What is divorce mediation?
- What is a pre-marital Agreement?
- What is a legal separation?
- Legal separation versus divorce?
- What is an annulment?
- What is paternity?
- What to do to prepare for divorce?
A divorce or dissolution in California is a legal proceeding to dissolve a marriage. California is a no-fault jurisdiction and as such, the reason for requesting the divorce or dissolution may not be pertinent to the proceeding.There is a waiting period in California for a dissolution of six months. This six month period begins to run the day the dissolution is filed and served on the opposing party. After the six month period has run, then the court may grant Husband or Wife a dissolution of marriage even if the other party objects to the dissolution.The legal proceeding also allows both Husband and Wife to deal with the issues of custody of minor children, visitation with minor children, child support, spousal support and asset/debt division. Husband or Wife can also deal with emergency issues such as domestic violence restraining orders or children being removed from the state. Please contact an attorney directly to advise you on emergency issues.
In California, you can initiate a dissolution action by filing a petition in Superior Court. The dissolution process ends when either Husband and Wife have been able to come to an agreement or when the parties have gone to trial on the issues in front of a judge at Superior Court.
To file for a divorce or dissolution in California you must be legally married and have been a resident of the California for six months prior to filing your petition for dissolution. You or your spouse must also have been a resident in the county in which you are filing for three months prior to filing the dissolution.
There are no common law marriages recognized under California law. A valid marriage is not created by cohabitation for any length of time in California.
Whether a dissolution in California is contested or uncontested is solely dependent upon the parties themselves. If the parties are able to agree on all applicable issues concerning the divorce, including issues of custody, visitation, child support, spousal support and asset/debt division, then the dissolution will be uncontested. If uncontested the parties need never appear in court or have a judge make decisions regarding their case.
If Husband and Wife cannot come to an agreement regarding all issues, then the proceeding is considered to be contested. In this instance, the parties may need to go to court at numerous times regarding different issues and all the issues may ultimately be determined by going to trial which can be costly and time-consuming.
It is possible for a dissolution to begin as contested, for the judge to make orders in a case, and then for the parties to finalize their divorce via a written agreement commonly known as a Marital Settlement Agreement. This avenue is much less expensive than going to trial, but still considerably more expensive then having a truly uncontested proceeding from the beginning.
At Yelman and Associates, we offer parties who are in full agreement the opportunity to complete an uncontested divorce for a flat fee. This fee includes one meeting with an attorney for both parties to obtain any information the parties may need in order to come to an agreement on all issues; we prepare all the documents for both Husband and Wife if needed; we file the necessary papers with the Court (any filing fee is the responsibility of the parties); we prepare a Marital Settlement Agreement which resolves all issues between Husband and Wife and outlines their respective rights and responsibilities as a result of the dissolution; and then we notarize all necessary documents in our office. We act as a neutral third party when retained to do an uncontested divorce and do not represent either side.
Mediation is the process in which a neutral third party, who does not represent either side, helps Husband and Wife come to an agreement resolving any issues of custody, visitation, support and asset/debt division. This is different from the contested divorce described above only in that the parties know they are not in agreement on certain issues, need to meet with a neutral party more than once to attempt to resolve these issues, but still want to attempt to resolve these matters without court intervention.
A mediator can assist the parties in coming to an agreement through this process of mediation. However, if the parties do come to an agreement with the mediator, it is still common for each party to take the final Marital Settlement Agreement to an attorney of their own choosing, who is not a neutral party for the parties, and to have that attorney review and advise each party on the contents of the Agreement reached with the mediator. That way each party can determine if the final agreement is a “fair deal” for them.
A Pre-Marital Agreement is an agreement between prospective spouses who are contemplating marriage. The pre-marital agreement allows the parties to determine their community property rights and financial responsibilities upon consummation of the marriage.
This is different from a Marital Settlement Agreement as defined above as this agreement is intended to define the parties’ rights and obligations when a marriage is being dissolved. A Pre-Marital Agreement defines the rights of each party prior to marriage. This can be important for one party who has accumulated significant assets they wish to protect prior to marriage.
In executing a Pre-Marital Agreement the parties can avoid or alter current community property laws with regards to property already owned by the parties prior to marriage. A Pre-Marital Agreement can also avoid or alter current community property laws with regards to property obtained after marriage and therefore, these agreements should be reviewed carefully if you are the party who is affected by the change in community property rights in property acquired after marriage.
Pre-Marital Agreements can also sometimes determine spousal support at the time of marriage, instead of at dissolution. Child support, however, cannot be waived in a Pre-Marital Agreement.
At Yelman and Associates, we are happy to assist you with the preparation or review of a Pre-Marital Agreement. Please call to set up a consultation on your family law matter at your earliest convenience.
Generally, at the point of legal separation, community property laws do not attach to the acquisition of property or debts. So, at the time of legal separation, all assets acquired by one party are their separate property and all debts incurred by one party are their separate debts. This is also the date that may be used for the valuation of certain community assets and community debts that will be divided in the dissolution.
Typically, legal separation occurs when a petition for dissolution is filed. However, the date of legal separation can actually be prior to the date of filing the petition. The date of separation occurs legally when the parties have come to a parting of the ways with no present intent to resume their marriage, and their conduct evidences a complete a final break in the marital relationship.
If parties are in dispute as to the date of separation, a judge may ultimately need to make the final determination on the date of separation based on the facts and evidence presented to the Court.
Individuals can petition the Family Court for a Judgment of Legal Separation instead of a Judgment for Dissolution. This is appropriate in cases where both parties believe that reconciliation may be possible. It is also appropriate in cases when one party needs to be maintained on another party’s health insurance long term, due to illness or disability. During a legal separation, the parties are legally separated but not divorced, and therefore, unable to remarry.
A Judgment of Nullity determines that for reasons existing at the time of marriage, no valid marriage ever existed and the marriage is void. The reasons a marriage may be found to be void include Incest; Bigamy: Minority; Fraud; Duress; Physical Incapacity. There is a higher level of proof needed to obtain a Judgment of Nullity then a Judgment of Dissolution and can only be obtained based on the reasons listed above.
Paternity is a method to determine that a man is the biological father of a child born outside of marriage. It Paternity is established then both parties can be legally bound regarding issues of custody, visitation, child support, and any other issues directly affecting the child. Typically, it is the mother who initiates a paternity action in order to obtain child support. However, a paternity action can be very important to protect a Father’s Rights with regards to custody and visitation of a minor child born outside of marriage. Paternity is usually determined through a blood test.
If you have minor children, assets or significant debts to divide then seek advice of counsel before leaving the home or taking any legal action. Every situation is different and it is important that you are advised properly based on your situation.
Generally, however, if only assets or debts are in issue, make sure you have copies of all documents you would need to prove your case in court such as:
- When each asset or debt was acquired during marriage;
- What was the value of the asset or debt at the time it was acquired and now;
- What was the source of funds for the acquisition of any asset;
- Current copies of all pension, profit sharing, IRA, money market, brokerage or bank accounts that are titled in the name of either party alone or jointly;
- Copies of all deeds, mortgages or deeds of trust for any real property owned by the parties;
- Any other documents pertaining to any asset or debt acquired by your or your spouse prior to the marriage;
- All documents pertaining to any business owned by either party or jointly including operating statements, tax returns or any other pertinent document regarding the valuation of the business;
- Tax returns for the last 3-5 years;
- A simple list of all your assets and debts to go over with any attorney; and
- All documents that detail your current monthly expenses and income.