This overview regarding divorce is NOT intended to be a substitute for a personal legal consultation with an attorney as it pertains to your situation. This is a general outline describing the methodical process of what the court considers when determining any orders in your case. 

To learn more about the following subjects,  click on the subject matter title you are interested in.

1. Divorce - Contested vs. Un-Contested.         2. Child Custody.       3. Child Support.    4. Spousal Support.     

 5. Restraining Orders.    6. Challenging Restraining Orders (TRO).     7. Attorney Fees (who will pay)

8. Contempt Actions - Enforcing a court order.    9. Paternity Action.    10. Child Support Enforcement . (DCSS and the District Attorney office)   11. Loss of Driver's License.   12.  Custody Evaluation   12. Wage Assignment orders    13.  General common legal terms.   14. Legal terms used in a divorce proceeding.

DIVORCE

CONTESTED vs. UNCONTESTED

    Although the term divorce doesn't sound complex,  it has many variables.   People file for a divorce to end their marriage.   Depending on the specific issues in each case, some are very  complex,  called "contested", and others are less difficult, in legal terms, which are considered to be  "uncontested".  Let's discuss the differences and how either term would affect your case, including the attorney fees that could be charged. . 

    In California, the ending of a marriage is called a dissolution action.   By filing a Petition for Dissolution, it means that the marriage will be dissolved under the laws of the State of California and the rules of the  Family Code.  For the purpose of providing information to you here, the word "DIVORCE"  will be used since it is the most common word people use for ending a marriage.

Can you file for a divorce in California?  In order to file for divorce in California, you have to be a resident of the State of California for at least six (6) months, plus a resident for at least three (3) months in the county where you reside. When the residency requirement has not been met, you can still file for a legal separation, then amend the petition after the six months time period has elapsed.   

UNCONTESTED DIVORCES

    Summary Dissolution:   This is the simplest kind of divorce in California.  As long as the marriage is less than five (5) years, there are  NO CHILDREN of the marriage, (natural or adopted),  you are under the statutory dollar amount for assets and debts, NO real property, and no issue of spousal support, it is a relative easy process.  Neither party would  have to appear in court.  The Petition is joint and is signed by both parties who indicate they have an agreement and they request the marriage to end.   If you don't have an agreement, you CANNOT  file for a summary dissolution.  If either of the parties refuse to sign the papers you would have to file for a regular dissolution.  If you are not certain that the other party will follow through with this type of action, and may change his/her mind,  this would not be the best method for you since that party can stop the divorce action at any time before the entry of the judgment.  You   could have filed a regular divorce action and the action could still proceed as a contested matter. 

    PETITION FOR DISSOLUTION  -   UNCONTESTED:

    First we have to understand what an uncontested divorce action is.   A completely uncontested divorce action does not mean that either party does not have an attorney.   The important role of a family law attorney is to advise you what your rights are under the Family Code and guide you to give you an understanding of  how the action will proceed, what  can and cannot take place, and how it will affect you. Most importantly,  make sure you understand what you are would be signing.  In a regular dissolution action that is not contested, the only real difference from a Summary Dissolution is  the length of time of the marriage.  In this case,  you can be married any length of time, have children, a house or real property,  pay or receive support, and there is no joint petition.  One person is the Petitioner (the person who files first) and the other, is the Respondent who has an opportunity to file a "Response".   There is a limited amount of time, 30 days from receipt or service of the Petition, in which a response is to be filed.   The Petition and Response sets forth the initial requests of the parties.  They are not orders of the court.   The requests usually include,  a list of the property, assets, and debts that each party wants.   Things to consider when filing a petition or response is  who will get what household items,   will the house have to be sold or either party will "buy-out" the other party's share,  what about the credit cards,  the vehicles,  yard tools and equipment?  What is your share of the retirement benefits including 401Ks? Do you get spousal support?  AND if there are children, who will be the custodial parent?  What is the percentage of visitation?  How much child support,  day-care and medical expenses?   All of these are important issues and definitely need to be addressed in any agreement between the parties.   The law office of David A. Casey can assist you when making these important decisions and to weigh the cost versus the possible outcome of your case if you chose to contest any of these issues.     Uncontested divorces are the least costly of divorces and certainly less strenuous emotionally for the parties.   

PETITION  FOR  DISSOLUTION  -  CONTESTED:   

    Let's face it, most people end their marriage because they are no longer  in agreement with their spouse regarding some area of their lives.    Unfortunately,  there may be other factors outside of the marriage that affect their decision to separate.  Strong emotions usually  spill over into the divorce action whereby coming to an agreement becomes an impossible task, thus leaving it up to the court to make an order.   

Problematic issues usually are:   

1.  Child custody and visitation:    These are the most litigated areas in  family law matters.

2.  Support - Child and spousal support:   If not agreed upon, child support is determined by a state guideline formula based upon the incomes of both parties and percentage of visitation.   Spousal support becomes a much heated topic especially when the spouse who has to pay it, discovers how much he/she will have to pay and the duration it has to be paid based on the length of the marriage.   It may be looked at as burdensome which only ignites the flame for other issues to be litigated.  If the other party is dating someone else,  the fuel is added to the fire and most of time communication on these matters deteriorate being left to the court to decide. 

3.  Division of community property:    Community property is deemed community if it was purchased during the marriage.  The process of the division of such property, based on the fair market value, can be a very sensitive issue.  Who will get what?  Who wants what?  What is the value?  Does any property/items have to be sold?   It gets to be so overwhelming that the parties just give up only to let the court decide.  

    Another issue in the division of community property is when one party claims that something is their sole  separate property or wants reimbursement for separate money used to purchase a community asset. This creates a separate property interest in the community property.  The argument comes in when the party when it cannot be determined if the asset was truly separate from the community, thus becoming a contested issue.

5.  Retirement Pension and 401K:     It is difficult for some partners to understand that based upon California laws,  each spouse is entitled to one-half of the retirement/401k earned during the marriage only.   The formula becomes complex when one of the partners started work prior to marriage so determining the exact share and the parties become confused.  Other times, one party will waive their pension right in exchange for another community asset, such as a house, car, etc.   Decisions made as to your rights to your spouse's retirement pensions  can have a profound effect upon you, thus,  it is very important that you have been advised of your rights by a competent attorney.   This is an area that is contested often in divorces.

6.  Inheritances and gifts received as gifts to a specific party.  What happens here is determining the sole separate property when it has been commingled with community assets.  We have to trace the asset to the separate property source,  then determine if it qualifies under the family court for reimbursement and how much.

7.  Debts.   This can be a problem area when there is not enough community assets to pay off the community debts.   If the debts incurred during the marriage, the legal issues are  normally not too complex since the debts are most likely community debts with a few exceptions such as student loans and gambling debts.  The problem is how they will be divided.

8. Attorney fees.   Who will pay the attorney fees?    If there are enough community assets, the court  may order the attorney fees to paid out of such funds.  However,  if the incomes of the parties are different from each others, then the court could other the higher income earner to pay the attorney fees of the other party.   Again,  it is a balancing act as to whether or not the cost of going after the attorney fees versa the benefit.   What the court will also take into consideration is the ability to pay off the higher income party for an asset, and whether  he/she is paying child support or spousal support.  

9.   RESTRAINING ORDERS AND KICK OUT ORDERS.   Since these are very serious orders, unfortunately many times this causes the parties to file for divorce, or if they have already done so, it escalates other problems.   Certainly these orders are necessary to ensure the safety of the person obtaining these orders, however, all too often, many times the person getting these orders use them to get the other spouse out of the house in an effort to deny visitation in custody cases.  It is easy to make allegations to get a restraining order, but in doing so, it can adversely affect the other person being accused since it could affect their employment.   The problem here is that the court will, as it should, take the safe approach when a person is asking to be protected from domestic violence.  If children are involved, the person who is being accused may end up only having supervised visitation for a period of time and can even affect their right to have custody.  In turn, this will have a profound effect on the divorce process and settlement of any divorce action.

10.  DRUGS, ALCOHOL, SEXUAL ABUSE and USE  OF PORNOGRAPHY.      These issues have significant weight when allegations are made against the other party when there are children involved.   Whenever the child's well-being and safety is placed at risk,  the court has to address these problems and what the ramifications of such actions has upon the child or children, thus these become very complex matters.  . 

11.  INFIDELITY.   Based on the laws in the State of California (a no fault state),  this is not a  problem area, HOWEVER, due to the emotional effects that it usually has on the other spouse,  it clouds many of the issues.  Many spouses who learn of the infidelity,  will do everything possible to make the divorce as unpleasant as they can.   From a legal point, this is not a issue unless the person is living with the individual and requests spousal support.   If child custody is involved, it could be a problem area if the new partner has any past problem areas in his or her life. 

          There are many other problem areas in a contested divorce proceeding.   If there is a business or other income generating sources,  it adds to the complexity of  the issues to be determined.    My office strives to do everything possible to protect you, your rights, and your assets as much as possible and to  ensure the court has all of the facts to get you the best possible outcome on contested issues.  

Any legal content contained on this website is not intended to and does NOT constitute legal advice

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