Category

Divorce

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.

 

 

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

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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

Do I Qualify For Summary Dissolution

dissolution

Dissolution is the official term for divorce in California.

There are two ways you can obtain a dissolution in California: standard, which is the most common form of divorce, and summary, which is a shortened version of the divorce process.

Not everyone can use summary dissolution to end their marriage as there are very specific requirements that must be met for the court to approve your divorce.

Watch Kathy Minella Explain More

Who Qualifies for a Summary Dissolution?

There are strict eligibility guidelines for a California summary dissolution and all of them must be met to proceed. In addition to those listed above, it is required that:

  • At least one of you has lived in California for at least 6 months, and in your county for at least 3 months before filing the petition.
  • Both of you must agree to summary dissolution and the grounds of irreconcilable differences.
  • Neither of you may own real estate or hold a lease with an option to purchase.
  • Neither of you has more than $40,000 in separate, or non-community, property.
  • Neither of you has incurred more than $6,000 in debt, excluding car loans, since the date of marriage.

Both of you must also read and sign a summary dissolution booklet that is provided by the state. The booklet explains the entire process and contains helpful worksheets for dividing assets.

How to Obtain a Summary Dissolution

There is less paperwork required for a summary dissolution than there is for a regular one, but you must file with the superior court clerk a Joint Petition for Summary Dissolution that includes a property settlement agreement.

A Judgment of Dissolution and Notice of Entry of Judgment must also be prepared. Six months after filing, your divorce will be final.

You do not have to appear in court and afterwards you are free to remarry. At any time during those six months either you or your spouse can stop the summary dissolution process.

If you are looking for a fast resolution to your marriage, summary dissolutions can be the right option for you as long as you meet the necessary requirements.

To learn more about whether you may qualify, or for help in starting the process, talk to a qualified California family law attorney.

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