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.
On rare occasions, the court has the ability to deviate from a guideline child support figure to ensure the amount being paid is in the children’s best interest. This can mean either an upward or downward deviation depending on the circumstances of your case. While a new spouse’s income is not used to calculate child support specifically, it can be used to determine tax brackets and your tax filing status which can increase or decrease support depending on your situation.
In child support cases, determining income and parenting time are the two most heavily contested issues. Voluntary underemployment, unemployment, and/or non-disclosure of income for both the payer and recipient of child support are common issues that are tackled each day. Voluntarily reducing your income can not only have severe consequences in your case, but there is no guarantee that your support payment will increase or decrease as the court can impute income to non-working/underemployed parents and order you to get a job. Similarly, attempting to increase or decrease a parent’s parenting time for the sole purpose of influencing child support is a common play that tends to leave children on the sidelines and courts on the offensive.
Whether you are on the offensive or defensive when it comes to child support, the right play can make a difference in setting a fair support award. The PLBK team is happy to strategize with you about the tools you can use and information you need to make that happen.
Custody & Visitation
In San Diego, per the Family Code the court’s general policy is to push towards an equal timeshare unless there is a reason this type of schedule would not be in your children’s best interest. However, this does not mean that any type of timeshare is guaranteed. There is a focus on continuity and stability for your children. This includes preserving the current parental relationships, which means keeping a schedule that is most consistent for the children while also making sure they continue to have frequent and continuing contact with the other parent.
When you file a motion requesting to establish or change a visitation schedule in San Diego, you will first attend mediation. The mediator will make a recommendation to the judge about the parenting schedule if you are unable to reach an agreement. What type of schedule will be recommended or ordered generally takes into consideration the children’s needs, children’s ages, as well as availability and ability of parents to parent their children in accordance with what they have requested.
As part of most custody and visitation orders the Court looks to what is in the children’s best interest considering their health, welfare, and safety. This can mean a variety of different schedules.
If you are considering a relocation to a different state with your children, this is often referred to as a move away case. Move away cases can be some of the more complicated and drawn out proceedings in family law. What stage your case is in as well as your current orders will dictate what law is applied and how the judge will evaluate your case.
Child custody and visitation orders can evolve with the needs of your family and children during their minority. Having the right guidance is important to help you overcome any curveballs being thrown your way.
Under the Domestic Violence Prevention Act abuse is defined as any of the following:
- 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.
Many people think of abuse as the imminent threat of or actual expression of physical violence, however, this is not the case. Abuse can be verbal, mental, and emotional as well as physical. While other types of abuse can be harder to prove, that does not make them less real.
Temporary restraining order requests are submitted to the court and will be either granted or denied that same day. No notice is given to the alleged abuser prior to the submission and may be granted solely on the testimony of the requesting party.
Even though a temporary restraining order can be granted without the other side’s knowledge or participation they can still include restraints on the alleged abuser’s conduct, orders to stay away from the other party’s home, school, place of work, car, or the other party in general. The order can request removal of the alleged abuser from the home, provide for custody and visitation of the children, custody of pets, payment of debts, control of property and for attorney’s fees. To determine whether a longer restraining order will issue or if there are any changes to the temporary orders, both parties will participate at a hearing.
In order to obtain a domestic violence restraining order, a victim must have a personal relationship with the alleged abuser such as marriage, sharing a child, dating, shared a residence, or related by blood. Civil harassment restraining orders do not require any such relationship and can be requested by anyone being continuously harassed by a particular party.
If the court grants the request for restraining orders those orders must be served personally on the restrained party. You can request the sheriff’s office to serve the restrained party or attempt service by a different third party. Once the restrained party is personally served the restraining orders will be uploaded into the California Law Enforcement Telecommunication System (CLETS), but it is technically in effect the moment it is granted even if not yet served.
It is very important that if you are the restrained party you do not violate the restraining order, even if you think it lacks merit or is entirely fabricated. Violations of restraining orders can carry criminal and civil penalties which can follow you even if the underlying request is ultimately denied. This includes contacting third parties to reach out to the protected party. Similarly, it is very important that protected parties report any violation of a restraining order to local law enforcement to make sure you are safe.
The restraining order will be set for hearing typically within 21 days. At that time the orders may be made “permanent” up to a period of five years. The temporary orders may be continued to another hearing date. Any restraining order that has been granted on a temporary basis will likely be extended to the new hearing date but sometimes can be modified.
If you are the victim of abuse, try to obtain evidence of any abuse. Pictures of injuries, text messages, emails or witnesses of the abuse (verbal, physical, or emotional) will be helpful to determining whether the orders are granted or not. If you believe you or your children have been the victims of abuse contact law enforcement.
If you have been wrongly accused of abuse you should also gather as much information that you can, without violating the restraining order, to help disprove the other side’s case.
Civil harassment restraining orders follow many of the same principles as domestic violence restraining orders but are governed by the Civil Code of Procedure not the Family Code. The burden of proof is higher when requesting this type of order, and generally these hearings are less likely to be rescheduled if everyone has been properly served.
The PLBK team has experience successfully requesting and defending both civil harassment and domestic violence restraining orders, as well as related fee actions and are ready to help you.
While being married at the time of a child’s birth may be the most straightforward way of determining parentage, this is not the only way to determine a parent or establish legal parentage.
If you were not legally married at the time of the child’s birth you may have signed a Voluntary Declaration of Parentage and the other person is either the genetic parent of the child or if the child is conceived through assisted reproduction and the other person is the intended parent. The Voluntary Declaration of Paternity can be attached to the Petition to determine parentage, and unless contested within 2 years of signing will be treated as a judgment of parentage. If you have signed such a document and do not agree that you are the child’s parent, you should seek legal counsel and file an action as soon as possible to avoid time running out.
Biology is not the only way to establish parentage. A person can be established as a presumed parent and similarly be entitled to all the same rights and responsibilities as biological parents depending on the circumstances. The person may be a presumed parent if that person and the biological parent have attempted to marry before the child is born and the marriage may not be valid, or the presumed parent and the biological parent have married since the child was born and the presumed parent has: 1) been added to the child’s birth certificate, or 2) if the presumed parent has taken the child into their home and then held the child out to the public as their child.
The law does not preclude a child from having more than two parents. Best to have this play sent to the review booth as soon as possible. If you have questions about your parent status proper clock management is essential. Don’t let the clock run out on your options.