California Family Law

Do you live in California? Relationship on the rocks? Before you take any drastic steps, you should consider your options concerning divorce, spousal support and child custody. An uncontested divorce may be what you desire, but before you give your lawyer a retainer, think about divorce mediation, as well.

This hub will review issues related to California family law. It is not meant to be a substitute for actual legal advice. It will, however, give you a primer before you seek counsel to help you through this difficult time in your life.

In California, it doesn't matter whose fault it may be if a marriage is ending. You don't need to prove anything, except "irreconcilable differences" between you and your spouse. Evidence of the irreconcilable differences will is not completely necessary at trial but a statement claiming it is not possible to correct the differences between the two spouses may be necessary. It depends on the family law judge. The primary issues that will have to be decided in a divorce proceedings include child custody/visitation and spousal support and/or child support. We'll go over those in more detail below.

Unless you have a premarital agreement that provides differently, all property acquired during marriage is "community property." That means that it is owned jointly, and will be generally divided evenly in divorce or annulment.

The one thing that you do have to prove to file a petition for dissolution of marriage in California is that you have lived in the state for at least 6 months, 3 of which must be in the county in which you will be filing for divorce. You cannot take advantage of California laws unless you establish residency in the state.

For those couples who have been married 5 years or less, without children (and not expecting any), you may be able to get a "summary dissolution," which speeds up the process and also costs less. In some cases, you may not even need to hire a lawyer (though it is always advised). Other requirements for a summary dissolution include: (1) meeting the residency requirement; (2) citing irreconcilable differences; (3) no real property ownership; (4) debts do not exceed $4,000; and (5) the total value of community property is less than $25,000.

One of the biggest complicating factors in a divorce is the potential liability for ongoing support payments. Not surprisingly, many people just want to be "done" for good and not have to worry about future interactions with their ex. When children are in the picture, that is not possible.

Let's review Child Support first. California has a statewide formula (called a "guideline") for determining child support obligations. This takes into consideration a number of factors and is applied by the judge in the case where the divorcing parents cannot agree. Child support is usually payable until the child reaches 18 or 19 (depending on the date they complete high school).

Factors include: (1) money earned (or potential earnings) of the parents; (2) other income received by the parents; (3) the number of children; (4) time spent with their children by each parent; (5) tax filing status; (6) support of the children from other relationships; (7) health insurance expenses and special needs; (8) child care costs, (9) uninsured medical costs; and (10) educational expenses.

Click on the California Guideline Child Support Calendar to enter your own figures and get and estimate as to potential award or liability.

Spousal or Partner Support can also be complicated, but depending on your circumstances, this element of a divorce may be somewhat easier to resolve. While the divorce is pending, a spouse or partner may seek temporary support if that person is unemployed or earning significantly less than the other. Courts in Orange and Los Angeles Counties use a spousal support guideline: the spouse earning more shall provide 40% of his or her net monthly income, reduced by one-half of the lesser earning spouse's net monthly income.

At trial, the award will be based on factors as set forth in the California Family Code. The length of the marriage, living standards, the extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse, whether there are young children at home, and employment opportunities available to the spouse requesting support, all may be considered.

The length of time over which a spousal support award must be paid depends in large part on how long you were married. Couples together 10 years or less will usually have an obligation or entitlement for about half of the married time together.

Often child custody and visitation is a stumbling block to what might otherwise be a smooth divorce proceeding. If the parties cannot agree, a judge will enter an order based on the facts and a recommendation from a Family Court Services mediator.

Things to consider with respect to custody and visitation:

At issue is: (1) legal custody (the decision-maker regarding health, education and religion); and (2) physical custody (who the children live with). There can be joint custody, if the parents agree and the court finds it to be appropriate considering the best interests of the child. Visitation concerns the plan for how the parents plan to share time with the child or children.

Contrary to many peoples' beliefs, the mother of a child does not automatically get custody or visitation. Many factors are considered, including the biological parents, adoption, and history of abuse or neglect. Physical disabilities, alternative lifestyles and religion or sexual orientation are not relevant in most cases.

In rare cases, custody may be denied to both parents, if determined to be in the best interest of the child. A guardian will be appointed to step in when the parents cannot provide adequate care.

Given the breadth of this subject related to divorce, this brief summary on custody and visitation should be but a starting point for your consideration. Again, consultation with a divorce attorney is recommended to get specific advice for your particular circumstances.

A great option for California couples that wish to minimize the cost, hassle and potential impact to children is to go through an "Uncontested Divorce" mediation. For a flat fee as low as $1500, plus court filing costs, you and your soon-to-be ex can sit down with a lawyer/mediator and go through and agree on key points of the divorce in an 8 hour session.

If you want a fight - this is not the option for you. Both parties must be honest about their expectations and resources for Divorce mediation to work. People from Riverside, Orange and San Bernardino Counties have all used these services in one of their convenient locations in either county. Of course, filing will be required to be in the county in which you reside and will comply with procedural requirements and filing fees.

An annulment is basically a decision by the court that the marriage was never legal to begin with. Reasons for seeking an annulment include: (1) one or both parties were under the age of 18, without parental consent; (2) incest; and (3) polygamy (one or both parties are legally married to another spouse). You will petition for a judgment of nullity, rather than a petition for dissolution.

Annulment will not necessarily be any less expensive, nor will you be able to avoid community property laws that require property acquired during the "marriage" to be divided equally. Some people prefer an annulment decree, however, for religious or social reasons.

Be sure to talk with your attorney about what option makes the most sense for you. Each individual circumstance makes giving general guidance very difficult.