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# 512 Understanding divorce

mp3 #512 What Should You Know About Divorce (mp3 file)


Family Law matters are very complex. Many who try to handle these matters on their own quickly find themselves overwhelmed and out of favor with the courts. Often times costs are cited as the reason for self representation. However, most people with assets and retirement plans stand to lose significant amounts of money, or worse, if they are not properly represented. Continue here to be referred to an experienced and insured Family Law attorney:


This SmartLaw Message will discuss the following questions:

--What are the grounds for divorce in California?

--How do you file for a dissolution?

--What happens after you file?

--What is a summary dissolution?

--How will your property be divided?

--What kinds of community property are you likely to own?

--Who will divide your community property?

--What is spousal support?

--Who will get custody of your children?

--Can you get a legal separation?

--Can you get an annulment?

--Should you be represented by a lawyer?

First, what are the grounds for divorce in California?

In 1970, California became the first state to allow "no-fault" divorce. This means you no longer have to accuse your spouse of being cruel, committing adultery, or doing anything else that caused your marriage to break up.

In California, there are only two grounds for divorce, which the law now calls "dissolution." One is "irreconcilable differences." This means that you and your spouse no longer can make your marriage work. You do not have to tell the court what your problems are. You only have to say the marriage will not work and counseling will not help save the marriage. Even if you believe your marriage is working but your spouse does not, the court will dissolve your marriage. The second ground for dissolution is incurable insanity, but it is rarely used. Some counties have free or low cost "conciliation" or "mediation" services. These are counseling services that you may want to use to try either to save your marriage, to keep your relationship with your spouse from getting worse during the dissolution, or to resolve disagreements over child custody. However, both you and your spouse must agree to use the services.

Next, how do you file a dissolution?

You or your spouse must have lived in California for at least six months, and in the county for three months before you file. Then, you or your lawyer must file a number of papers including a divorce petition with the clerk of the superior court of the county where you or your spouse lives. Unless you have a very low income, you must pay a fee to file these papers.

You must also have copies of the petition and a "summons" delivered to your spouse. The summons is a paper which gives notice that you are filing for a dissolution. (If you cannot find your spouse, the judge may approve another way of notifying your spouse of the fact that you are filing).

The summons tells your spouse that he or she has a chance to respond to the petition for dissolution within 30 days. In the response, your spouse indicates the areas of disagreement that need to be resolved by the court. For example, your spouse might object to your request for spousal support, or sole custody of your children.

You can purchase a dissolution form packet for a minimal fee, from the clerk of your county's superior court.

Next, what happens after you file?

Once the dissolution papers are filed and the summons is issued, both spouses are prohibited from removing their minor children from the state without the other spouse's approval, or disposing of property without the other spouse's or court's approval, or canceling or changing insurance policies.

You or your spouse may then ask for a hearing, so a judge can decide any temporary child custody, visitation rights, and support or "restraining order" disputes. After the temporary issues are settled, you, your spouse and your lawyers will begin to work on permanently resolving issues raised in the dissolution. Suppose you and your spouse - with the help of your lawyers - cannot agree about permanent custody and support arrangements, or a property settlement. Then, you both must go to court for a trial, where a judge will make these decisions.

You may not have to appear in court, if your spouse agrees not to contest the dissolution, or if your spouse "defaults" - does not file an answer to the papers asking for dissolution. But, you then must file an "affidavit" or sworn statement with the court, saying that the marriage is ending because of irreconcilable differences. You also do not have to go to court if you get a summary dissolution.

The judgment dissolving the marriage will specify the date your marriage is legally terminated, which cannot be less than six months from the day that your spouse is served with the summons and petition. You cannot remarry legally until after that date.

What if you want to remarry or have some other reason for wanting to be single at the end of six months? A judge can make your dissolution final, even though some property or other issues are not yet settled.

Next, what is a summary dissolution?

With a summary dissolution, you do not have to go to court, and you are not represented by a lawyer. You may qualify for a summary dissolution if you have been married five years or less, have no children, do not own a home or other real estate, and do not have much other property, among other things.

Both spouses must agree to all the terms of a summary dissolution, and either one can call it off for any reason before the dissolution is final.

For more information, you should get a booklet called, "summary dissolution information" from the clerk of your county's superior court.

Even though you do not have to go to court, you may want the advice of a lawyer. You may need help filling out the official forms required for a summary dissolution, and you may not be sure whether some possessions are yours or your spouse's. You also may have more property, including pensions or profit-sharing plans, than you think.

Like a regular dissolution, a summary dissolution requires filing fees and takes at least six months.

Next, how will your property be divided?

California, unlike many states, has community property laws. These laws recognize that both spouses make valuable contributions to a marriage, even though only one of them may work outside the home. Everything you own is either "community property" or "separate property."

Community property. This is all property in or out of the state, that either you or your spouse obtains through your labor or skills during marriage, as well as most debts incurred during the marriage. Each spouse owns one-half of all community property. This is true even if only one spouse worked outside the home during the marriage, and even if this property is in only one spouse's name.

Community property is divided between you and your spouse during dissolution. You and your spouse can agree in writing that neither of you own any community property. You both should get legal advice before entering into such an agreement.

Separate property. This includes real estate, money, furniture or any other belongings - and any interest, rent or profits received from these items - that you or your spouse owned before you married, or which you acquired after the date of separation with your separate earnings, as well as inheritances that one of you received either before or during marriage. It also includes certain gifts to you only - not you and your spouse. Separate property is not divided during dissolution.

Usually, your separate property stays your separate property, even if you mix it with community property. This is true unless you sign a paper giving up your property. It is· important to seek legal advice regarding property held in both names, particularly if the property was purchased before January 1, 1984.

When your marriage is dissolved, any money you owe will be divided into community property debts and separate property debts. Debts that either you or your spouse acquired during marriage are community property debts, with some exception such as student loans which are considered separate property debts. This includes credit card bills, even if the card is in your name only. But, in most cases, debts owed before getting married or incurred after separating from your spouse is your separate property debt.

Community property possessions and community property debts are divided equally unless you and your spouse agree to unequal division. (You may want to check with an attorney about the tax consequences of an unequal division.) However, if your spouse agrees to pay a community property debt and then fails to do so, the debt still must be settled and you may have to pay. If this happens, you later may be able to sue your spouse for the money.

Next, what kinds of community property are you likely to own?

Many married couples own "real estate" - (a home, land or rental property) - as well as furniture, appliances and a car, as community property. You and your spouse also may have cash in checking and savings accounts, stocks and bonds, IRAs, pension and profit-sharing plans, life insurance policies, tax refunds, or a business - all of which can be community property.

In fact, you and your spouse may have more community property than you realize. Your lawyer can help you make sure that all of your belongings are properly listed as either community or separate property. For example, your lawyer can explain any right you may have to your spouse's pension or profit-sharing plan, and whether you are entitled to a share of your spouse's disability payments or "derivative" social security benefits.

Next, who will divide your community property?

You and your spouse can decide how to divide your community property. You can divide it any way you like, even if the division is unequal, but you should do so in writing, and have it approved by the court. This can be a complicated process, and each of you may want a lawyer's advice.

Or, you may want to see a mediator - a trained neutral party who sits down with you and the other person to try working out an agreement that you both can accept. Some family law lawyers are mediators or can recommend one.

If a judge makes the decision, your belongings will be divided evenly - unless there are unusual circumstances. However, ownership of each of your belongings might not be split between you and your spouse; instead, a judge might give each of you things of equal value. For example, if your spouse gets the furniture and appliances, you might get the family car or something else of equal value.

Perhaps your home is the most valuable community property you and your spouse own. All your other possessions added together do not equal the value of your home. If you and your spouse cannot agree on what to do with your home, the judge will make the decision. The judge might decide that it should be sold, and the money it brings in is then divided equally between you and your spouse. Once the judge approves the property settlement that you and your spouse agree to, you cannot make changes unless both spouses agree in writing.

Next, what is spousal support?

"Spousal support" is the name for alimony in California. No matter what you call it, spousal support is money that one spouse pays to help support the other after a dissolution has been filed. "Child support" is the money one spouse pays the other to help with the cost of raising your children after a dissolution has been filed.

You and your spouse can decide if one of you should receive spousal support. If you cannot agree, a judge will decide whether spousal support should be paid, who will pay it, how much it will be, and how long it will last.

In making a decision about spousal support, a judge considers the standard of living that you had during the marriage. A judge also will consider each spouse's age, health, earning capacity, and job history. Suppose one of you is not working. Then, the considerations include how difficult it will be to get a job, the amount of money the job might pay, whether a job would interfere with taking care of the children, whether job training would be needed and, if so, how long the training would take.

Perhaps neither of you needs spousal support when your marriage is dissolved. But needs can change. One spouse might have a long and expensive illness. The other spouse might lose a job. As a result, your lawyer may advise you to ask the judge to "keep the issue open" by "reserving judgment." Then, you will be able to ask a judge for spousal support in case your needs change during a given period. Under certain circumstances, you or your spouse may go back to court and ask the judge to increase or lower the amount.

You also should know that federal and state income taxes have to be paid on any spousal support payments received. And the spouse who makes the support payments will be able to take part or all of the amount paid as an income tax deduction.

Courts now are able to order "wage assignment," directing a spouse's employer to pay spousal support or child support directly to the other spouse.

Next, who will get custody of your children?

You and your spouse can decide who will take care of your children. You can choose between "sole custody" or "joint custody."

Sole custody means that one parent has primary responsibility for bringing up the children. Joint custody means that both parents share responsibility.

If you and your spouse choose joint custody, you can decide on joint legal custody, joint physical custody or both. With joint legal custody, both parents are involved in making important decisions about the children, such as authorizing medical care or deciding where they will go to school. Joint physical custody means that the parents share the day-to-day care of the children. The children do not have to spend equal amounts of time with each parent, although they may do so.

You should know that, if you and your spouse cannot agree about custody, it is mandatory that you try to solve the dispute through family court mediation before you see a judge. Family court mediators have training in mediation skills and in understanding the needs of parents and children. Most counties have mediation services, and some offer one or a limited number of sessions at no charge. To find a family court mediation service, look in the telephone directory under your county superior court, or call the county clerk's office for information.

Next, can you get a legal separation?

Yes. Perhaps you and your spouse are living apart and have no hope of getting back together. You may have religious, insurance, tax or other reasons for wanting a "legal separation" instead of a dissolution. Then, you and your spouse may ask a judge for a judgment of legal separation. Unlike a dissolution, you can get a legal separation without living in California for six months or your county for three months before filing.

When you make your separation request, then property settlement, child custody and child support, and spousal support arrangements also must be made. Once you and your spouse are separated by the court, anything you earn is your separate property.

Of course, a legal separation does not end your marriage. You cannot remarry unless you first get a dissolution.

What if you ask a judge for a legal separation, but your spouse asks for a dissolution? In this case, the judge will grant the dissolution.

Next, can you get an annulment?

If you get an annulment, which now is called a "nullity," the judge will say that, legally, your marriage never existed. And you will be able to remarry any time after the judge grants the nullity. For example, you may be able to get a nullity if you married at a young age without the consent of your parents or guardian, or if certain types of "fraud" or deceit were involved. Unlike a dissolution, you can get an annulment without living in California for six months or your county for three months before filing.

Next, should you be represented by a lawyer?

Since property settlements can be very complicated, a lawyer can help you decide which of your belongings are community property, and which are separate property. A lawyer also can tell you how the court may divide your property, and help you put your property settlement agreement in writing.

A lawyer can help you plan in matters where timing is important. For example, you might not know that you must be married for at least 10 years to qualify for social security "derivative" benefits, or that, if you wait until you are 55 to sell the family home, you get a tax break.

A lawyer not only can advise you if an unexpected problem comes up, but also can attempt to protect you if your spouse files for bankruptcy before you receive the money due to you in the property settlement. And, a lawyer may be able to help you notify your spouse about the dissolution if you are unable to do so.

In addition, a lawyer can advise you on how much money, if any, you should pay or receive for spousal or child support.

Lawyers who handle dissolution and custody cases are called family law attorneys. Some are "certified specialists" in family law. This means that they have met standards for certification experience and examination - by the state bar of California. Not all lawyers who have experience and expertise in family law, however, have sought certification.

If you do not know a lawyer, ask a friend, co-worker, employer or business person to recommend one with experience in family law.

Or, call your county bar association for a list of state bar- certified lawyer referral services in your area. You also can look for a lawyer referral service in the yellow pages of your telephone directory under "attorney referral services," "attorneys" or "lawyers." The person who answers your call at the referral service can make an appointment for you to see a lawyer. You will pay a small fee for the referral and may talk with the lawyer for about half an hour. Then, if you decide to hire the lawyer, make sure you understand what you will be paying for, how much it will cost, and when you will be expected to pay your bill

What if you do not have enough money to pay for legal advice? You may belong to a "legal insurance" plan that covers the kind of services you need. Or, if your income is very low, you may qualify for free or low-cost legal help. Check the white pages of your telephone directory for a legal services program such as a legal aid society. You also can ask your county bar association if it offers free legal advice for low-income people or if it can direct you to a no-cost legal services organization.

The purpose of this message is to provide general information on the law, which is subject to change. If you have a specific legal problem, you may want to consult a lawyer.

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