One spouse, called the Petitioner, files a document called a Petition for Dissolution of Marriage (along with several other documents) with the Clerk of the Court in his or her county of residence. The other spouse, called the Respondent is then served with the Petition and the other documents. If the Respondent does not agree with what the Petitioner is requesting in the Petition, the Respondent must file a Response no later than 30 days (45 days if served out of state) after he or she was served with the documents.
If the Respondent fails to file a written Response within the time allowed, the Petitioner can apply to the court for a default. The Petitioner must then file an Application for Entry of Default with the court and mail a copy to the Respondent. The Respondent then has another opportunity to file a Response. The Respondent has ten days from the date of the Application for Entry of Default to file a Response. If the Respondent still does not file a Response within ten days from the date the Application for Entry of Default is filed and mailed, then the Petitioner can proceed with the dissolution.
If a divorce is contested, it means that the Petitioner and Respondent do not agree on some aspect of the case and the Respondent has filed a Response to contest it. Some examples of issues that must be resolved prior to the court granting a divorce are child custody, child support, spousal maintenance, division of property and debts. If an agreement cannot be reached by both parties, the case will go to a trial before a judge who will render a decision on the unresolved issues. In California there are no juries in a divorce case.
An uncontested divorce is one that the parties mutually agree on all the issues and there are no disputes.
A party must live in California for 6 months and must live in the county for 3 months.
Joint legal custody means that both parties share legal custody of the child or children and that neither party's legal custody rights are superior to the other. Joint Custody may be granted if a judge feels that the parties can communicate with one another well enough to make joint decisions regarding the child's well-being.
If the Judge feels that the parties cannot communicate with one another, then one spouse may be granted sole legal custody giving that spouse the authority to make all the major decisions regarding the child and the other spouse may have little if anything to say about it.
Primary physical custody means that one parent has the child physically placed with them and the right to make all the routine daily decisions with regard to the child's health and general welfare.
Perhaps the most difficult issue in a divorce involves the custody of a child or children. If the Petitioner and Respondent cannot agree on custody arrangements, a judge will be forced to make the decision. The court will always decide the issue of custody looking to the "best interests" of the child as the legal and factual standard.
The judge will consider a variety of factors including but not limited to, the wishes of the child and the parents, the mental and physical health of all individuals involved, domestic violence, drug or alcohol abuse, as well as the current living arrangements of the parents and the child.
Child support is determined by a set standard and formula adopted by the California Supreme Court. The amount of support is determined by adding together the monthly gross income for each party. From that number a basic support amount is determined from the guidelines. The basic support amount is then affected by such things as medical insurance for the child, child care, educational costs, the age of the child, and support of other children.
In California, the law acknowledges that marriages are essentially partnerships and even though one party may not have worked outside the home, the law presumes that this spouse still contributed equally to the marriage in other ways. The other ways a spouse may have contributed to the marriage, include but are not limited to, child rearing, managing the household, and providing physical and emotional support to the wager earner.
The party seeking spousal maintenance is not automatically entitled to it. The party seeking an award of spousal maintenance must be able to prove a need for it. The court may award spousal maintenance to the party seeking it if they can show, as an example:
The court will also consider the number of years the parties were married and whether the party requesting spousal maintenance is of an age that there is little chance of gaining adequate employment. The other party must also have the ability to pay the spousal maintenance. If these circumstances exist, the court will determine not only the amount of maintenance to be paid but also for how long it is to be paid.
In determining the amount and duration of the support, the court will consider all relevant factors, including but not limited to:
California is a community property state and the law of community property guides the courts when dividing marital assets. All property acquired during marriage is presumed to be community property. The courts thus consider all property acquired during marriage to be community in nature and subject to 50/50 division. However, certain property is considered to be separate property, not subject to division, meaning it belongs solely to one spouse. Examples of separate property include, property owned prior to the marriage, or property one spouse received as a gift or through a will or inheritance.
Some property that was once separate may become community property if it is considered to be CO-mingled or gifted to the community. CO-mingling can occur, for example, by depositing separate property funds into the spouses' joint bank account. Gifting could occur by using separate property funds to improve a community residence.
When the marriage is dissolved the court attempts to make an equitable, though not necessarily equal, division of the community assets and awarding each spouse their separate assets.
The law does provide for an award of attorneys' fees and costs in some circumstances. The award of attorneys' fees and costs is a discretionary award left up to the trial judge hearing the case.
After considering both parties' financial resources, the court may order one spouse to pay a reasonable amount to the other spouse for court costs and expenses, including attorneys' fees. In reaching a decision on whether to award fees and expenses, the court will base its decision on the relative ability of each party to pay their own fees and expenses. The general purpose behind an award of fees and costs is to allow the party with the lessor financial means an equal opportunity to present their case. It may also be used as a sanction depending on the positions taken by a party throughout the litigation.
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