Filing for Divorce (Dissolution of Marriage)

Divorce, or the dissolution of marriage, is the process of dissolving the legal relationship between married persons.

Divorce related issues often include a discussion of a person’s legal interests as it relates to any of the following:

  • Reasons for Divorce (No Fault Divorce & Irreconcilable Difference)

  • Classification of marital property as community property or separate property (Community v. Separate Property);

  • Divorce v. Annulment (Annulment);

  • Divorce v. Legal Separation (Legal Separation);

  • Division of community property business interest (i.e. divided value and debt of the business, determining who maintains and/or manages the business, dissolving the business, etc.);

  • Division of community property retirement benefits;

  • Stopping a spouse’s sale, transfer, encumbrance, or gift of community or separate property;

  • Discovery of a spouse’s hidden assets;

  • Child custody, child support and child visitation (parenting time) rights & family law mediation related to child custody and child visitation;

  • Spousal support rights (Alimony);

  • Domestic violence restraining orders (DVRO);

  • Dividing, selling, or maintaining a community property family home;

  • Tax liability and benefits related to divorce;

  • Tort liability of a former spouse (Lawsuits);

  • Prenuptial & Postnuptial (Inter-marital) agreements;

  • Bigamy Claims & Putative Spouse Status;

  • Child move away requests (Relocation of child’s residence after divorce);

  • Pet custody issues related to divorce;

  • Fathers’ rights & grandparents’ rights to child custody, child support and/or child visitation (parenting time);

  • Contempt (refusal to follow court orders);

  • Family law legal forms navigation;

  • Family law trials and appeal or modification of family law orders; and more

Note: Laws related to a California divorce issues are complex and ever-changing. Litigants who choose to represent themselves in divorce court without the aid of a divorce lawyer should be aware that family law judges are not lenient on non-lawyers who are unfamiliar the rules of law, legal deadlines, evidence production, preservation and presentation of evidence, and/or legal court procedures. A person considering divorce options should seek the advice of a family law lawyer at his or her earliest opportunity in order to avoid common and costly mistakes that can negatively, and irreversibly, effect you and your family's best interest.

Grounds for California Divorce

There are two legal grounds (reasons) upon which to base a California divorce: 1) Irreconcilable differences, and 2) Incurable insanity. By far, most divorce cases proceed on the grounds of irreconcilable differences.

Note: A divorce based on the grounds of incurable insanity is often related to conservatorship legal issues. See Conservatorship.

Irreconcilable Differences: Irreconcilable differences means that the spouses have differences that negatively impact the marriage and that it is not possible for the spouses to continue in the marriage based on those differences. Family law judges rarely inquire into the basis or the validity of the claim of irreconcilable differences. This is true even if one of the spouses to the marriage believes that the marriage might be saved without dissolving the marriage.

No Fault Divorce: California is a no-fault divorce state. No fault divorce means that it does not matter to the family law court who is at fault, if anyone, in causing the divorce; California family law judges will not inquire into areas that attempt to prove fault in a the divorce (i.e. infidelity, lack of affection, etc.).

Six Month Waiting Period for California Divorce

California law requires a six month waiting period from the time a divorce is filed to the time it is legally recognized in law. This six month period is created because many California divorce applicants actually change their minds about divorce after filing for a divorce.

Automatic Temporary Restraining Orders (ATROs)

The petition for divorce includes automatic temporary restraining orders (ATROs) designed to stop a spouse from selling, encumbering, or gifting community property, or from acquiring new community debt before the family law judge has a chance to make further orders concerning those assets and debts. The automatic temporary restraining orders also forbid a spouse from ceasing to pay for the other spouse’s medical or dental insurance, car payments, etc., if the paying spouse regularly paid those bills before he or she was served with the divorce petition.

Note: Failure to comply with the ATROS can lead to contempt of court.

Community Property & Debt

There are common issues that come up in many California divorce cases; many of those issues are discussed in greater detail in other areas of this website (See List of Services); however, community property and community debt as it relates to divorce deserves extra attention here as it is commonly misunderstood.

Community Property: Community property is any property or asset acquired during marriage by either spouse, whether vested or not, and whether or not the property is real, personal, or intellectual. This include retirement benefits, goodwill value in a business (jointly or solely owned), cash on hand, securities and bonds, accounts receivable, income from employment, money from trusts, and more.

The value of community property, once established, is divided equally at divorce, unless otherwise agreed to under a marital settlement agreement (MSA), prenuptial agreement, or post-nuptial agreement (inter-marital agreement). This does not mean that a particular piece of property is divided equally, but rather, the value of community property as a whole is equally divided.

Community Debt: Community debt is any debt acquired by either spouse during marriage. Community debt is usually divided equally at divorce, but family law judges may use equitable factors to assign debt unequally. These equitable factors include, but are not limited to, any or all of the following: 1) which spouses benefited from the community debt, 2) which spouse is more capable of paying for the debt, 3) and which spouse was primarily sought by third parties to repay the debt.

Community Property v. Separate Property

As stated, all property and debt acquired during the marriage is considered community property and community debt respectively. However, there are exceptions to this rule where prenuptial and post-nuptial agreements may predetermine the character of the property. Also, property acquired by inheritance, property acquired before marriage and property acquired after divorce or legal separation is considered the separate property of the acquiring spouse unless the acquiring spouse has commingled that property with community property or the post-marital acquisition of property is funded by community property. 

Divorce v. Annulment v. Legal Separation

Divorce is the process of separating the legal relationship between married spouses. An annulment is a legal declaration that declares a marriage void from the beginning (as thought the marriage never took place). A legal separation is a court ordered separation of the spouses’ property, finances, debts, and future legal obligations, but the marriage itself remain in tack after a legal separation.

Note: Annulment is available in limited circumstances (See Annulment); a legal separation option is more common than a divorce option where the parties want to remain married due to either religious reasons, or because the marriage itself is healthy, but the spending habits or substance abuse addiction of one of the spouses subjects his or her spouse to possible financial harm.

Do I Need a Lawyer for Divorce?

Some California divorces cases are relatively straight forward and uncomplicated, while other California divorce cases may require complex litigation and discovery. Either way, if you are considering a California divorce you should proceed with the guidance of an experienced family law and divorce lawyer.

 

For divorce cases that are relatively straight forward, local, and non-complex, the price of a lawyer is usually much less than what the average non-lawyer might otherwise believe.

In fact, the financial outlay related to retaining a divorce lawyer for use in a divorce case is often much less than the financial (and emotional) price a person pays in the long run for using a non-lawyer paralegal to assist with divorce paperwork only. This is because non-lawyer paralegals are either unfamiliar with family law rights, or they are legally unable to advise as to a person’s family law rights related to a divorce or legal separation.

Note: The lasting negative legal consequences associated with do-it-yourself divorce (or the use of unqualified legal aid divorce paralegals) can add years of unnecessary stress and result in substantial loss of rights, assets, finances, and above all, time with a child or children.  Be aware, failure to timely file or respond to a request for order (RFO) in family law court can have severe and lasting negative effects on your divorce case; this is especially true in domestic violence restraining order, cases spousal support issues, and child custody cases.

Note: “Non-complex” divorce cases are usually, but not always, divorce cases where there is little or no marital assets, the marriage was relatively short in duration, there are no child custody related issues, and where there is no claims of domestic violence restraining orders (DVRO) or bigamous marriage.

Collaborative Divorce: When the parties to a California divorce are amicable and agree on legal issues they might benefit from collaborative or mediated divorce; however, even in the case of an amicable divorce, the parties should first be made aware of their respective legal rights, responsibilities, and consequences through a qualified divorce attorney before initiating or finalizing their California divorce.

At Dorado & Dorado, our experienced divorce attorneys understand that divorce is a highly personal matter and that clients require individualized attention. Our experienced divorce attorneys handle every aspect of your divorce case to make the process less stressful by keeping you up-to-date and informed while competently and aggressively pursuing all of your divorce rights. Most of all, our attorneys will not make matters worse with unnecessary litigation designed to create more hostility and inflexibility between the parties and their children.

If you find yourself contemplating divorce, initiating a divorce, or caught in the middle of a difficult divorce, call the experienced divorce attorneys at Dorado & Dorado. Our divorce attorneys are available six days a week (excluding Sunday) for a free in-office first-contact consultation. We also offer more detailed review of ongoing divorce cases for a one-time limited and minimal fee. Call today for a free and private consultation with an experienced California divorce attorney.

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