Going through a dissolution (divorce) is one of the biggest challenges that any adult goes through in his/her lifetime. There are only a handful of life events that visit the same broad sweep of change and emotions. In a dissolution, you are unraveling the fabric of your life. You are permanently parting ways from your most intimate partner; you are disentangling your finances from each other; and you no longer get to tuck your child into bed every night. In short, you are splitting a family.
What’s at Stake
Much is at stake in a divorce, often the most important things in a person’s life: his/her ability to see and raise their children and the division of the majority of his/her assets. This, of course, creates tremendous stress and can impact a person’s health and job performance. Some couples are able to navigate these choppy waters and can remain civil enough to divide their property, establish a timeshare for their children and implement it, and file the necessary paperwork. But more often couples are not able to do so. And because so much is at stake, when you and your spouse are fighting, it is imperative to have an attorney who can advise you of the law and fight for your interests. This is especially true if your spouse has an attorney but you do not. This situation will most likely result in you being deprived of what is earned over the years, both in terms of property and custody.
A Dissolution is a Divorce
In California, the courts no longer use the term divorce. Instead the courts refer to the dissolution of a marriage. For this reason, the court action is referred to as a dissolution and not a divorce.
Jurisdiction: Who Can File a Petition for Dissolution of Marriage?
In order for the court to have the ability to terminate your marriage (proper jurisdiction), one of the spouses in the marriage must have resided in California for at least six months and have resided in the county in which the petition is filed for at least three months. The person filing the petition does not have to be the one who meets the residency requirement. The couple could have been married in another state or country and could have lived most of their marriage in another state or county.
California is a No Fault State
California is a no fault state. That means that the court does not care if one spouse’s behavior damaged or caused the failure of the marriage. For that reason, the court will not consider evidence explaining why the marriage failed, e.g. one spouse’s infidelity.
There are only two basis on which the court may end a marriage: (1) irreconcilable differences or (2) incurable insanity. Most marriages are ended for irreconcilable differences. The reason for this is that very little evidence is required to prove this and that if a marriage is ended because one person is found to be incurably insane, the sane spouse may be obligated to support that person indefinitely.
Only one spouse need claim that there are irreconcilable differences. So even if the other spouse believes that the marriage may be saved and wishes to continue being married, the marriage may be ended by one person’s petition for dissolution claiming that there are irreconcilable differences.
Paying Attorney’s Fees in a Dissolution
Legal services are expensive. However, when the custody of your children is being determined and all of your assets about to be divided, it makes sense to invest in legal representation so that your interest and rights are properly represented. If you own a house, have built a retirement, and have minor children, it is generally shortsighted to not—at the very least—consult with an attorney about what your rights are.
Paying for an Attorney when You do not Immediately Have Funds for an Attorney
Rule: for attorney’s fees here. In California it is a statewide policy that if funds are available, the parties must have access to legal representation. That means the marital community or the spouse with greater assets can be ordered to pay an award to be applied for attorney’s fees. To obtain such an award, the spouse seeking attorney’s fees must file a Request for Order for Attorney’s Fees and explain why he/she needs funds. The spouse must also be able to demonstrate that the community or the other spouse has access to the funds requested. In this way, a spouse who has not controlled the finances and who does not have access to the couple’s money may obtain attorney’s fees. The award for attorneys’ fees can be substantial and will be designed to level the playing field in any litigation. At Allingham & Cuerva we have experience in negotiating and/or obtaining attorney’s fees for spouse of up to $100,000.
The Elements of a Dissolution with no Minor Children
There are three main issues in dissolution with no minor children (less than 18 years): (1) Termination of Marital Status, (2) Separation of Property; and (3) Spousal Support
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Termination of Marital Status
The main purpose of a petition for dissolution is to return the spouses, who are married persons, to the legal status of being single persons.
Often marital status is terminated when the other issues in the dissolution (property & custody) are resolved. However, upon petition to bifurcate marital status from the other issues, the court can move quickly to return the parties to single person status even though it may take much longer to resolve the other issues. The court must wait at least six months from the filing of the petition for dissolution before terminating the marriage.
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Division of Property
California is a community property state. That means that during a marriage every dollar that a spouse earns, fifty cents is automatically the property of the other spouse, and vice a versa. This applies to all income earned by each spouse. Property that a spouse owned prior to marriage is considered separate property and will remain so provided that spouse has not commingled it with community property. For example, if a wife owned rental property prior to getting married, that property will remain her separate property. However, the community (the couple) will be entitled to a reimbursement for any community property spent on that rental property.
Upon dissolution, the couple must divide their community property. Each side is required to disclose all of the couple’s income and assets, separate and community. If the parties properly disclose all of their income and assets, then division of property can be straightforward. However, if a spouse fails to disclose income or assets and one spouse attempts to hide or misrepresent an asset, then division can be very complicated. Likewise, if community property and separate property have been commingled over the years, which is common in longer marriages, then dividing the property can fairly can difficult. For example, if one spouse owned a house prior to marriage, but then the couple was paying the mortgage with community property, the community is entitled to a reimbursement and to a share of the increase in equity.
In short, over the course of a dissolution, the parties will disclose all of their assets, the court will determine which assets are community assets and which are separate property assets, and then the court will award those assets to each person. If necessary an equalization payment will be made by one person to the other to ensure that the division is fair.
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Spousal Support
For a broader discussion on spousal support, please click here. Typically the lower earning spouse is entitled to spousal support in order to maintain his/her standard of living and to finance the education and training necessary to seek full employment.
For marriages of less than 10 years, spousal support will be awarded for one-half the length of the marriage, e.g. for a six year marriage, the award will be for three years. For marriages of more than ten years, the award can be without time limit.
The courts use a complex formula to determine spousal support. The formula considers each spouse’s income and expenses, the couple’s standard of living and each person’s assets.
The Elements of a Dissolution with Minor Children
The elements of a dissolution with minor children are the following: (1) Termination of Marital Status, (2) Separation of Property, (3) Spousal Support, (4) Child Support, and (5) Child Custody. The first three elements are discussed above and are subject to the same rules.
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Child Support
For a more in depth discussion on child support, click here. A child is entitled to support from both parents. As such, the court will order higher income parent to pay the other parent child support until the child reaches the age of 18. The court calculates this based on a formula that considers each parent’s income and expenses and the amount of time each parent has custody of the child. Because these payments are directly proportional to the amount of income a parent makes, the payments always represent a substantial expense to the paying parent, and as such the amount to be paid can often be a point of contention.In order for child support to be awarded, one parent must petition the court for the award. The award will be made retroactive to the date of petition, so the sooner a parent makes the request the sooner he/she may get child support.
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Child Custody
For a more in depth discussion of child custody, click here. There are two types of custody: legal custody and physical custody. Legal Custody is the ability to have a say in how your child is raised: where she goes to school, what medical treatment she receives; what religion she practices, etc. The courts generally grant joint legal custody; that is both parents have 50-50 legal custody. The court will typically only deny legal custody to a parent if that person engages in behavior that is a dangerous to the child.As to physical custody, the court will issue a temporary order that first establishes physical custody of the child. Then the court will make a permanent order. The permanent order will stay in effect until there is a substantial change in circumstances. In California it is presumed that it is in the best interest of the child to have equal and continuous contact with both parents. As such, the default position for the court is to award joint physical custody and a time share that grants 50-50 time to each parent. That said, there are often circumstances relating to a parent’s work and living situation, a parent’s bad behavior, and/or a parent’s financial circumstances that may require the court to award a disproportionate share of time to one parent.
For an example of different timeshare schedules that the court may award, click here.
The Importance of Representation
As stated above, in a dissolution much of what is important to you will be at stake: custody of your children and the division of your assets. The dissolution may also determine whether you will pay or receive child/spousal support for years. There are many rules which influence these decisions, and navigating them without legal counsel can result in unfair results. Investing in legal counsel when the stakes are so high is a worthwhile endeavor. When else is so much on the table? At Allingham & Cuerva we stand by you in court and represent your interests and fight to protect that which is most valuable to you.