Divorce, Legal Separation & Nullity
If you are thinking of ending your marriage, there are several options you can consider. Dissolution of marriage, more commonly referred to as divorce, is a multi-step process that will legally terminate your marriage. In California, you do not need any specific reason to request a divorce, and the other person does not need to agree before you make such a request. Often divorce cases involve multiple family law matters depending on your circumstances, which can include a number of issues such as custody and visitation, child support, spousal support, and division of assets and debts. These issues can range from the simple to the complex depending on a number of things including the size of the marital estate and reasonableness of the parties.
As attorneys, we are often asked “how to get divorced as fast as possible?” Or “how long will this take?” The short answer is that an agreement is the fastest way to finalize a divorce, but often this is not possible, at least not at first. Knowing all of your options under the law can assist you in making strategic decisions for the benefit of you and your family. In California, pursuant to Family Code Section 2339(a) the earliest a divorce can be finalized is six months after, “the date of service of a copy of [the] summons and petition or the date of appearance of the respondent, whichever occurs first.” This means that it will take a minimum of six months to get divorced, but how long it will actually take will depend on the complexity of your issues, and cooperation of both parties.
Before deciding to advance with a court filing there are a few initial things to consider. When filing for divorce in San Diego, at least one party must meet the residency requirements. Specifically, you or your spouse must have lived in California for a period of six months before filing, and in the county in which you are filing for at least three months prior to filing an action.
Legal Separation may be a good alternative to a divorce if you have not yet met the residency requirement, or for other reasons where divorce is not appropriate or desired. Many choose this option for religious or other personal reasons. If both parties agree to a legal separation, you will remain married while still having the ability to separate your assets and make other decisions for your family.
Nullity or annulments are rarer than other types of actions because, unlike divorces and legal separations, you must meet certain criteria for the request to be granted. If your request for annulment is granted it would be as if you were never married. This can have certain financial benefits depending on your circumstances but can complicate other aspects of your case such as custody and visitation. However, as stated you can only petition for an annulment in California if you meet one of the following grounds: Blood Relation/Incest, Bigamy, Underage, Fraud, Incurable Physical Incapacity, Unsound Mind, and Force.
Making the right move right out of the gate can make all the difference. At PLBK we are happy to discuss all of your options to make sure you make the right play, for you.
Not every divorce or legal separation involves an award of spousal support. Whether or not you are entitled to support or will be paying support will depend on a number of factors during your marriage as well as what stage you are at in your divorce.
During the pendency of your divorce or legal separation the Court will look predominantly at your income and that of your spouse and use a California guideline formula to determine what is called pendente lite or temporary spousal support. Although rare, the Court has the ability to stray from this guideline and adjust the number up or down based on relevant factors that may include, but are not limited to, income to debt ratio, voluntary underemployment/unemployment, assets, Family Code Section 4320 Factors, etc. The purpose of temporary support is to maintain the status quo following your separation to the extent possible, understanding that the prior household income must now support two households.
When finalizing your divorce whether by agreement or through litigation the Family Code Section 4320 Factors, which present a different criteria than temporary support awards, must be considered by the Court. These factors include length of the marriage, employment history, tax implications, household duties, ability to work, contribution to success of the other spouse, need and ability, amongst other relevant factors. The Court is not allowed to use the guideline formula to determine spousal support following a final judgment, but often this figure does provide a basis with regard to ability. Generally, post-judgment support is meant to allow both parties to live at or as close to the marital standard of living as possible in consideration of the legal factors.
With regard to length of payment, generally for marriages with a duration of less than 10 years spousal support is paid for a period of half the length of the marriage. Marriages of over 10 years do not have a built-in termination date by operation of law. However, the length of marriage is not always dispositive of the length of payment and this can be argued depending on the details of your case.
Parties also may have the ability to change or modify spousal support orders either during the divorce process or after depending on the circumstances of your case.
A spousal support award, whether paying or receiving, can have you feeling like you struck out. The PLBK team can assist you in giving you your options to help you make the right call for your family.
* You should always consult a CPA and/or tax attorney as spousal support awards may have tax consequences of which you may not be aware.
Custody & Visitation
- Intentionally or recklessly causing or attempting to cause bodily injury.
- Sexual assault.
- Placing a person in reasonable apprehension of imminent serious bodily injury to that person or another.
- Engaging in any behavior that has been or could be illegal such as molesting, attacking, striking, stalking, threatening, battering, harassing, destroying the personal property, contacting another by mail, telephone, or otherwise disturbing the peace of the other party.