Tips And Caveats Of Divorce Claims In California
Since California is a "no-fault" divorce state, your choice of Divorce Lawyer can mean the difference between having what you want and being disappointed. Since the dissolution of a marriage is such a serious matter, it is in your best interests to hire a Divorce Lawyer to ensure that you leave the marriage with everything you are entitled to.
Residents of California who are unable to reach an agreement on the terms and conditions of their divorce in an uncontested divorce will need the assistance of a Los Angeles Family Law Attorney to work through the details of their cumulative years in order to represent our clients' best interests. This is a difficult time for you, and because of your emotional condition, the particulars of your divorce should not be ignored.
Divorce in California
Divorce, civil separation, and annulment are the three primary ways to terminate a marriage or registered domestic partnership in California. To end a marriage, all spouses or domestic partners do not have to consent. Any spouse or partner may want to end the marriage, and the other spouse/partner cannot stop the process by refusing to engage in the event, even though he or she does not want a divorce. If one spouse or domestic partner refuses to engage in the divorce proceedings, the other spouse/partner will obtain a "default" judgment, and the divorce can proceed.
California is a "no-fault" divorce jurisdiction, which means the spouse or domestic partner seeking the divorce does not have to show that the other spouse or domestic partner did anything wrong. One spouse or domestic partner must claim that the pair cannot get along in order to obtain a no-fault divorce. This is referred to as "irreconcilable discrepancies" in legal terms.
You must prepare ahead of time after deciding how you want to end your marriage or domestic relationship. Consider how you'll approach the situation. Planning ahead of time and speaking with a Divorce Lawyer will help you save time and money as you navigate the court system. Also, bear in mind that it usually doesn't matter who files the divorce or separation case first. The court gives no advantage to the first person to file or disadvantage to the first person to respond to the case.
Domestic partners must apply for the breakup (divorce), legal separation, or annulment to end their relationship if they wish to end their registered domestic partnership. Domestic partners with no children, no real property, few assets or debts, and a written agreement on dividing their property, among other limitations, will end their partnership in a summary process through the Secretary of State if they have been registered for less than five years and have no children, no real property, very few assets or debts, and a written agreement on dividing their property.
Domestic partnerships are not recognized under federal law for certain reasons, including Medicare, immigration, veterans' compensation, and federal tax laws. Domestic partners may be honored by the federal government for such reasons, including Social Security. Domestic partners do not have the same rights outside of California since some states do not recognize domestic partnerships. If you're leaving a domestic relationship and some of these problems relate to you, consult a Divorce Lawyer. You may also want to speak with an accountant who is familiar with these issues.
Divorce is a legal process that involves the filing of a divorce petition
Complete the court paperwork. You must fill out the same paperwork to apply for divorce or legal separation. Speak with a Divorce Lawyer if you need detailed legal advice about how to fill out your court forms. What you write on your court papers will make a big difference in the result of your case. It is important to be precise and thorough, and a Divorce Lawyer will assist you in determining how to fill out the forms in such a way that they correctly represent your situation. This is particularly relevant if you believe you and your spouse or domestic partner would disagree about the issues addressed in the court forms.
Submit the First Set of Court Documents. Your spouse or domestic partner must be informed that you have begun the legal process for a divorce, legal separation, or annulment, according to the statute. To do so, you must "serve" copies of all your court papers on your spouse or domestic partner. Unless your spouse or domestic partner has been adequately "served," the judge cannot make any orders or rulings in your divorce or legal separation case.
Consider one of our prescreened California Lawyers in your California Attorney Search.
There are two ways to serve the papers:
Personal service - This means that your "server" hands your spouse or domestic partner a copy of all the papers (along with the blank forms). In the majority of cases, you will have to personally serve your divorce or legal separation documents.
Service by mail with a Notice and Acknowledgement of Receipt - Whether you and your spouse or domestic partner are cooperating on your family law case and agree to allow service by mail, this may be a simple and cost-effective method of serving the documents.
Serving as a volunteer with the local child care department
If you or your spouse or intimate partner receives money or other assistance from the government for a child from this partnership (or if a child support case with the local child support agency is pending), you must also serve a copy of your filed forms on the child support agency's office in the county where the payments are paid.
When you've finished serving your forms
Wait for the other party to answer for 30 days. The respondent (your spouse or domestic partner) has 30 days from the date the petition was served to file a response with the court. Your next steps will differ depending on whether the respondent responds within those 30 days or not. Read the section on Finishing your Divorce or Legal Separation for an overview of your choices.
If necessary, request temporary orders.
You can now seek court orders for custody and visitation, child support, or spousal or partner support if you have an open court case. You are not obligated to do so, but you can if you so desire.
Complete and distribute your financial disclosure forms. In your divorce or civil separation case, you have lodged your petition. You're now ready to file the financial statements required for divorce or legal separation. Keep in mind that you will submit your financial disclosures at the same time as your petition, but no later than 60 days after the petition is filed.
You and your spouse or domestic partner must send each other written details about what you own and owe, as well as your income and expenditures, according to California law. To do so, you'll need to fill out and exchange a series of forms. This is referred to as "disclosure."
The aim of disclosure is to ensure that you and your spouse or domestic partner are both aware of what you own and owe, both individually and jointly, so you can divide your assets and debts fairly. It also provides you with the financial details you need to make child and spousal or partner support decisions.
If you don't exchange your disclosures, you won't be able to get divorced. Your property division can be "set aside" or canceled if you leave anything out of your documents, whether by accident or on purpose. It's also possible that your divorce case will be reopened. If the court discovers that you purposefully left something out of your declaration forms or lied on them, the court has the authority to request that any property you did not disclose be given to your former spouse or domestic partner. You may also be required to pay his or her legal fees as well as a fine.
Preliminary Disclosure Declaration
Within 60 days of filing your petition, you must make your preliminary declaration of disclosure. Make an effort to do so as soon as possible after filing your petition. You and your spouse or domestic partner will have the details you need to split your property and debts, as well as try to reach an agreement on child maintenance if you do it earlier rather than later.
Speak with a Divorce Lawyer if you need detailed legal guidance about how to fill out your disclosure forms. Financial records are crucial, particularly when there is a lot of property or debt to deal with. What you write on your financial disclosure forms will influence the outcome of the case if you and your spouse or domestic partner are likely to disagree on these issues. It is important to be precise and thorough, and a Divorce Lawyer will assist you in determining how to fill out the forms in such a way that they correctly represent your situation.
Spousal Support
To draft a spousal or partner support agreement, follow these steps:
Learn about your rights and obligations when it comes to spousal or spouse care. You should understand how spousal/partner support functions and what your rights are before signing an agreement with your spouse or domestic partner about spousal/partner support (whether you will be paying it, receiving it, or agreeing to no support). That way, you'll be completely briefed when you write up and sign your contract.
Determine the volume and length of spousal/partner help. Sum (or none if you accept that neither of you will pay spousal or partner help to the other). The length of the support payments — how long they will last; and How the payments will be made — directly between you two or by wage garnishment (an involuntary deduction from the paying person's paychecks).
Consider other topics and see if you can come to an agreement on them as well. Other concerns such as property and debt division or whether you have children, child care, custody, and visitation will be decided by the court as part of your divorce or legal separation. Consider reaching an agreement on these topics as well.
Sign your contract. The arrangement or stipulation must be signed by both spouses or partners. Make sure you understand it and that you are signing it willingly, not under duress or coercion.
Submit your agreement/stipulation to the court for signature by the judge. Check with the court clerk and see if you need to make copies ahead of time and submit them with the original or if you should submit the original and make copies later. The processes for doing so will vary slightly from one court to the next, so make sure you ask the clerk what you should do and when you should return to pick up your documents.
After the judge signs the agreement/stipulation, file it. File the original with the court clerk after the judge has signed the agreement/stipulation (after making copies if you did not already make them). The clerk will retain the original and return your copies to you with a "Filed" stamp. You will receive one copy, and your spouse or domestic partner will receive the other.
Requesting that the LCSA enforce a spousal or partner support order
In a divorce or legal separation situation, any spouse or domestic partner may petition the local child support agency (LCSA) for assistance in enforcing a spousal or partner support order.
Wage garnishments, bank liens, tax refund withholding, and other compliance operations will be taken over by the LCSA. They can also keep track of payments received as well as any outstanding spousal or partner help.
The LCSA will help implement spousal support or health insurance/medical support order as long as there is a child support order.
If the LCSA is involved, any decision you and your spouse or partner make about spousal or partner support or child support will have to be approved by them.
Spousal/Domestic Partner Support (Permanent or Long-Term)
You may petition the court to make a permanent or long-term spousal or partner support order as part of your divorce or legal separation decision, regardless of whether you have a temporary spousal or partner support order (your final judgment).
The judge will not use a formula to decide how much long-term or permanent spousal or partner help to order as part of your decision (if any). Instead, when making a final spousal or partner support order, the judge must take into account the factors listed in California Family Code section 4320. These elements include:
The duration of the relationship (marriage or domestic partnership)
What each person requires based on their previous standard of living during their marriage or domestic partnership
What each person pays (or can pay) to maintain the standard of living they had during the marriage or domestic relationship (including earnings and earning capacity)
Whether or not getting a career would make it too difficult to care for the kids
Both people's ages and fitness
Debts and real estate
Whether one spouse or domestic partner assisted the other in obtaining a degree, training, job, or professional license
If domestic abuse existed in the marriage or domestic relationship
If unemployment or child or household care had an effect on one spouse's or domestic partner's career
Spousal sponsorship and its tax implications (note: federal and state tax laws have not been changed to recognize domestic partnerships)
So, when you ask the court to make a permanent or long-term spousal or partner support order, ask for a sum that takes all factors into account and justifies why you think the amount you're asking for is fair in view of all of these factors.
Understanding the Factors, a Judge Must Take into Account
During the marriage or relationship, earning ability and standard of living
A judge must decide how much each spouse or partner should receive in order to maintain a standard of living similar to what they had before the marriage or relationship.
To do so, the judge considers the following:
The spouse or girlfriend who is receiving care has marketable skills.
There is a job demand for those skills.
Time and money would be required for the spouse or partner who receives assistance to obtain the education or training necessary to acquire more marketable skills or obtain employment.
The extent to which periods of unemployment during the marriage/partnership when he or she was devoted to domestic duties harmed the earning capacity (ability to earn income) of the spouse or partner who receives support.
Marriage or intimate relationship period
The extent of a permanent or long-term spousal or partner support order is directly proportional to the duration of the marriage or domestic relationship. The aim of spousal or partner assistance is for the recipient spouse or partner to be able to support themselves in a fair amount of time.
According to the constitution, a "reasonable period of time" is one-half the duration of the marriage or relationship. However, the law also states that the judge has the authority (discretion) to make a different decision based on the facts of the case.
There is, however, one significant exception. When a marriage or relationship is considered "long-term" (usually 10 years or more), the judge is not allowed to set an end date for spousal or spouse assistance.
The duration of a marriage or domestic partnership is usually measured from the time of marriage to the time of separation. Since the date of separation may have such a significant impact on determining spousal or partner support, the parties in a divorce or separation case may be unable to agree to one, and the judge may be forced to make that decision. In determining whether the marriage/partnership is of long length, the judge should also consider the periods of separation during the marriage/partnership.
Domestic abuse and protection from a spouse or partner
The judge must provide documented proof of any history of domestic abuse between the parties when determining spousal or partner assistance.
When the abusive spouse or partner is the one who will pay the support, the judge will accept any emotional damage caused by the abuse experienced by the spouse or partner.
Any history of abuse by the spouse or partner to be funded against the individual who will pay the support will be taken into account by the judge. Furthermore, there is a rebuttable presumption against providing spousal or partner care to an abusive spouse or partner who has been convicted of domestic abuse against the other spouse or partner.
Understanding Real Estate
Property refers to something that can be purchased or sold, such as:
A residence
Automobiles
Parts of furniture
Clothes
Property may also refer to something of monetary value, such as:
Cash and bank accounts
Apartment security deposits
Plans for retirement
401(k) plans are a form of a retirement plan that allows you to save money
Investing in stocks
Life insurance with a monetary value
a company
A patent is a legal document that identifies
When you and your spouse/partner get divorced or legally separated, the court decides how to split the property acquired during the marriage by the spouses or domestic partners.
Even if you don't wish to deal with these issues or if you divided your property informally when you divorced, the court must always issue a formal order.
This does not imply that you must resolve these problems in front of a court. Couples are often able to split their assets (and debts) by mutual agreement. When you get divorced, though, the judge must approve the arrangement. When that time comes, the property you acquired during your marriage or domestic relationship belongs to both of you, regardless of who uses or controls it. Debts are the same way. And if you divide them between yourself without a court order (or without a judge signing off on your agreement), the debt remains yours, and you are both responsible for it, even if you break it up informally.
To understand how property and debt are divided in California when a couple is married or in a domestic partnership, you must first understand how property laws work in California when a couple is married or in a domestic partnership. The remainder of this section will go over those rules in detail.
Separate Property and Community Property
California is a state that recognizes collective land. This means that when two people marry or register a domestic partnership, they form a legal "community." As a result, property acquired during the marriage/partnership becomes "community property," and debt acquired during the marriage/partnership becomes "community debt."
Property in the Community and Quasi-Community
Anything that spouses or domestic partners own together is referred to as community property. It covers everything you purchased or received during your marriage or domestic union, including debt, that was not a gift or inheritance.
All earnings received by either spouse or wife (or both of you) during the marriage are considered community property, as is anything purchased with those earnings. By looking at the origins of the funds used to purchase the land, you can typically say if it belongs to the group. The property would belong to the group if the purchasing money was received during the marriage.
For example, if you paid for a car with money you saved from your paycheck every month during your marriage/partnership, the car belongs to both you and your spouse or domestic partner. Since you earned money during the marriage/partnership, the savings you have from your salary are community property.
All financial commitments (debts) accrued during your marriage or domestic relationship are considered community property. This is valid even though only one of you was responsible for the debt or if a credit card was only in one spouse's or partner's name.
Each spouse or partner in California owns one-half of the community land. In addition, each spouse or partner is liable for half of the debt. The property and debts of the society are normally distributed equally.
It's possible that you own more community property than you know. You do not realize that if your spouse or domestic partner has a pension plan, you have a right to a portion of the money in that plan if all of it was received during your marriage or domestic relationship. You might also owe more money to society than you know. You may not be aware that your spouse or girlfriend has fallen into debt in his or her own name. If the debt was accrued when you were married or in a domestic relationship, it is still yours.
Quasi-community property is any form of property purchased by one or both spouses or intimate partners while residing in another state that would have been considered community property if acquired while living in California. In other words, whether you or your spouse or partner lived outside of California during your marriage or relationship and earned money, purchased real estate, or obtained some other form of property that would be considered community property in California, that property is referred to as quasi-community property. It will also be viewed as community property in the event of a divorce or legal separation in California.
For example, suppose you and your spouse spent part of your marriage in New York, where you both worked and bought a car. You've relocated to California and are considering getting divorced or legally separating. The earnings from your respective employment in New York, as well as the car, are quasi-community property because they would have been deemed community property if you had worked and purchased the car in California. As a result, earnings and a car will be considered as community property in a California divorce.
Separate Real Estate
Anything you possessed before you were married or declared your domestic partnership is considered separate property. Except during the marriage or domestic union, inheritances and gifts to one spouse or domestic partner are separate property. Rents, dividends, and any other money you receive from your separate property are also yours. Separate property is still separate property if you purchase it with separate property.
If you buy a car with the money you inherited from a deceased aunt, the car is yours even if you bought it during your marriage or domestic union because it was purchased with your separate property.
Everything you receive after the date of separation, including the money you make, is considered separate property. One of the reasons why the date of separation is so crucial is because of this. It will decide if a piece of property or debt belongs to the community or to the person.
If you own separate land, it is solely yours as long as it is held that way. Debts, such as credit cards obtained after the date of separation, may also be considered separate property.
Often check the origins of the funds used to purchase a product. You can then determine if the object is separate or group property. Ask your Family Law Attorney to avoid any unclarity on the specifics of the Law.
Commingling of a mixed community and separate property
Stuff may be separate part property and part collective property at times. Since the separate property and group property have been mixed together, this is referred to as "commingling." It can be difficult to find out how to divide the land that is a mix of separate and community property.
One common scenario is when one party owned a home prior to the marriage or domestic partnership and then sold it and used the money to purchase another home after the marriage or domestic partnership was registered. This new house's down payment should be considered as separate property (since the money came from selling a house that 1 person owned before the marriage or partnership). The equity (value) gained by paying down the house loan is community property if the mortgage payments on the new house are made during the marriage or relationship using either one of your earnings. As a consequence, the house's equity has been commingled.
Another scenario is whether you or your spouse/partner has a pension or retirement payout from a job held prior to or during the marriage. Before the marriage or registered domestic partnership, you each made different contributions to your pension. Contributions made after the date of marriage or domestic partnership registration and before you split are considered community property. Those donations become separate property when you separate. The exact division of the pension is difficult, and you will need the assistance of a pension specialist to work it out. If you both have a pension, you will be allowed to retain your separate pensions in certain cases. However, you must be certain of the worth of each pension.
In general, a Divorce Lawyer's assistance is needed when either spouse or partner has a pension. First and foremost, a pension may be one of the most important assets from your marriage or domestic relationship. Second, the laws governing pensions are extremely technical and do not extend to any other type of asset. Before a judge makes a decision on how your pension will be split, it must be "joined" as a plaintiff in your divorce case. A competent domestic relations order, or QDRO, is the name of the court order. If you make a mistake, the consequences may be disastrous. It is worthwhile to hire a Divorce Lawyer to prepare the QDRO for you.
Changing Your Name After or During a Divorce
If your divorce has been finalized and was granted in California, follow the steps below:
Inquire with the clerk of the court of the county where the case was filed. To find the website and contact information for your court, click here.
If applicable, give the court clerk the case number, case name (parties' names), and the date of the order/judgment/filing. A copy of your Notice of Entry of Judgment should be included.
After the entry of the judgment and order, submit an Ex Parte Application for Restoration of Former Name
In most cases, the court will process the papers in 2 to 4 weeks. Request an estimation of how long it would take from the clerk at your local court.
Contact the family law facilitator or a Divorce Lawyer if you have any queries. Your forms will also be reviewed by the family law facilitator to ensure that you filled them out correctly.
Requesting a fee waiver
If you are currently on a reduced income and cannot afford to pay the filing charge, you can request a "fee waiver."
There are three ways to get a fee waiver:
If you receive government assistance such as Medi-Cal, CalFresh, CalWorks, General Assistance, SSI, SSP, Tribal TANF, IHHS, or CAPI
If your household income is less than the amounts specified in item 5b of Form FW-001,
If the court determines that you do not have enough money to cover your household's basic needs as well as the court costs, you will be ordered to pay the court fees.
If your Request to Waive Court Fees (Form FW-001PDF file type icon) is granted, you will not be required to pay fees for:
Filing documents in superior court
Copies are made and certified
Having the sheriff issue a warning
In small claims court, obtaining a court-appointed translator
Seeing a telephone court hearing
Notification and certificates
Papers are being sent to a different court branch
The use of a court reporter
Creating, copying, and certifying an appeal clerk's transcript before sending it to the appellate court and the party
You won't have to pay fees for services the court decides are required for your case if you file a Motion to Waive Additional Court Fees (Form FW-002PDF file type icon), and the court grants your request. The waived fees would be checked off on the Form FW-003PDF file type icon or the Form FW-008PDF file type icon. One or more of the following may be present:
Jury costs and fees
Fees for experts appointed by the court
The cost of a police officer testifying in court.
Fees for a court-appointed translator for a victim
Other charges
Reimbursing Fees That Have Been Waived
And if your payments are forgiven, you will be required to repay them later. It's possible that you'll have to pay the other side's waived fees.
If your financial situation improves over the course of your case, the court can order you to repay any fees that were waived after your eligibility expired.
If the court requests evidence of the details you wrote on your fee waiver request and you do not include it, your fee waiver will be revoked, and you will be responsible for any fees and expenses that were waived.
If you win the case of a civil or small claim, the judge will normally order the other party to pay your legal costs. Unless those fees and expenses are charged, the court can not reach satisfaction with the judgment.
Even if the other side has a settlement waiver and did not necessarily pay the court costs, if you lose your civil or small claims case and the court orders you to pay the other side's fees, you must pay them. The judgment entered against you in the case will not be satisfied (considered paid in full) until you pay the other side's waived fees.
In a family law case, the court can order you to pay all or part of your waived fees or the waived fees of the other party if you receive a judgment or a child/spousal/partner/family support order. If this occurs, you have the right to request a court hearing to have the order to pay the waived court fees and expenses set aside (canceled).
Find A Divorce Attorney in Los Angeles
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