All Posts By

Kathy Minella

What Does a No Fault Divorce Mean?

no-fault

In 1969, California was the first state to sign no fault divorce into law. No fault simply means that things like extramarital affairs or abandonment are not of interest to the court as it applies to the actual divorce.

The official reason for divorce in California is “irreconcilable differences.” No fault means the court may not punish a spouse for hurtful actions when it comes to things like:

  • Division of martial assets, including the family home, bank accounts or investments.
  • Resolution of outstanding debts.
  • Spousal support.
  • Children support, custody, or visitation of children.

Irreconcilable Differences

The California family law court typically grants a divorce after finding that irreconcilable differences exist in the marriage. The California Family Code doesn’t set out a specific definition of just what constitutes irreconcilable differences, but it does require that the breakdown of the marriage be “substantial” and not “merely trivial.” In simpler terms, the court must rule on whether the marriage is beyond saving.

Exceptions to the Rule

There are instances when the court may consider “fault:”

  • Nullity (which invalidates a marriage as if it had never occurred).
  • Breach of fiduciary duty.
  • Custody.
  • Domestic violence.

Even in these cases, though, the wrongdoing must be relevant, not just an attack on the other spouse’s character. For example, if child custody is an issue, it is appropriate to note that a spouse has an alcohol or drug problem and recently received a DUI.

Breach of Fiduciary Duty

While it’s true California is a no-fault state, there is one area of misconduct that can influence a number of issues. If during the course of your divorce the court finds that one spouse breached their fiduciary duty to the other, there may be serious consequences.

In this case, the law allows the court to award one spouse 100% of a community property asset when the other spouse has not acted in good faith with respect to it. What this means is that neither spouse is permitted to take unfair advantage of the other just because they may have greater control of the community assets and money.

Consult an Attorney

Only one spouse needs to want a divorce to file for it under no fault law. If the other spouse does not want to divorce, there isn’t much he or she can do other than try to delay it through legal means. This often results in greater costs and, sometimes, the court may order payment of the other spouse’s attorneys’ fees for their unreasonable conduct.

Keep in mind that you can still get temporary orders for spousal support and/or child support, custody and visitation while your divorce is in progress. A consultation with a family law attorney will help you determine your best options.

Spousal Support FAQ’s

spousal-support

Spousal support can become one of the most complex aspects of your California divorce. California family law recognizes that, in many marriages, one spouse has a higher earning capacity than the other.

And in many families, one spouse – more often the wife – remains out of the workforce to care for the couple’s children. Of course, there are marriages where the wife has the higher income.

The law addresses this imbalance by allowing courts to order one spouse to pay spousal support to the other spouse.

Frequently Asked Questions About Spousal Support

  1. What is spousal support, and why should I care about it?

Spousal support is the legal term used for the payments one spouse makes to the other after a divorce. It’s intended to help maintain the former spouse’s standard of living during the marriage. When one spouse has either been out of the workforce for an extended time, or lacks the skills to quickly attain a well-paying position, the court awards spousal support to bridge the gap between the divorce and the time it takes for the person to obtain employment that will meet their costs of living needs.

For the person paying support, it is often the largest financial duty incurred as part of the divorce. For the person receiving it, it is often a lifeline that helps them get back on their feet.

2. How is the amount of spousal support determined?

When your case is first filed, the court can make what’s called a temporary order for spousal support. These payments tend to follow a simple formula: take 40% of the higher earner’s income and deduct 50% of the lower earner’s income. At the end of your divorce, the court determines if one spouse is entitled to long or short term spousal support. In these cases, California’s Family Code requires the court to take a much more holistic approach and consider factors that include:

  • The marital standard of living.
  • Each spouse’s current income
  • The extent to which the earning ability of the spouse requesting support was harmed by being out of the workforce.
  • The assets, debts, and needs of each spouse.
  • The length of the marriage.

3. What is the 10-year rule?

Under California Family Code Section 4336, marriages of over 10 years are considered of “long duration.” In these cases, the law prohibits the court from setting a definite termination date for spousal support at the time it is ordered. While the court can find that a marriage of less than 10 years also qualifies as a marriage of long duration, spousal support in these instances is typically paid over a period that is equal to half the length of the marriage.

4. Does child support affect spousal support?

California law is clear that the most significant obligation owed by parents is the support of their children. In a divorce, child support has priority over spousal support. It’s not uncommon that once child support is ordered, there is little to no disposable income available to pay spousal support.

5. What happens if someone just stops paying spousal support?

All spousal support orders continue until they are terminated by the court or modified by a subsequent court order. A spousal support obligation cannot arbitrarily be stopped by the person paying. Any modification or termination must be done through proper legal channels.

Failure to do so can incur substantial support arrearages, and the law imposes interest of 10% per annum on any unpaid balance. There can be other serious consequences, which a qualified family law attorney can discuss with you.

 

 

[image from Pexels]

Minimize Conflict and Expense: How You Can Avoid a Contested Divorce in California

business-divorce
business-divorce

Contested divorce in California 

No one who is about to go through a divorce wants to be subjected to the type of spiteful and hostile divorces that are routinely portrayed in movies and television, but many feel that an adversarial contested divorce is inevitable to the process.

A “contested divorce” means that the parties can’t agree on all the issues, such as property division, custody and visitation with children, the amount of spousal support (alimony), how to divide debts, or payment of attorney’s fees. 

In these cases, a family court judge will ultimately have to decide these questions after divorce litigation.  The reality is that a contested divorce is usually not inevitable, and although a divorce will always be difficult, for many divorcing couples in San Diego much of the emotional and monetary cost of a contested divorce can be avoided.  Continue Reading