Updated: Apr 22
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.
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.
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.