The Basics of California Divorce

The California Blogger (http://www.californiality.com) reports that the state’s divorce rate has reached nearly 75 percent, and she suggests, “A marital state of emergency needs to be declared. Divorce is California's most destructive epidemic.” Brooke Sommerfield, a California child advocate in San Diego, suggests that, “The statistics may, in fact, be a little low because California grants almost the same rights and privileges to cohabiting partners as to married couples. Sommerfield stresses, “Break-up or divorce always ravages children, and warring parents frequently forget that, although they may go their separate ways, they are bound in a lifelong parent-partnership.” Sommerfield especially emphasizes, “Moms and dads must learn to get along for the children’s sake—the sooner the better.”

Both strongly recommend that estranged spouses learn all they can about California divorce laws and that all families get counseling as they work through the difficult process of splitting-up the household.

Key terms and concepts

California’s divorce laws have served as the model for most other states, and many of the fundamental concepts in the law have worked their way into everyday conversation and the conventional wisdom. Divorce attorney, John Montero offers to highlight seven key terms relating to California Family Law and California Divorce:

  • “No fault”  The parties to the divorce need not establish fault for the marriage’s failure. California does not require proof of infidelity, abuse, neglect, or malfeasance; instead, couples generally cite “irreconcilable differences” as the cause of their break-up.
  • “Community property”  Everything you have acquired, saved, invested and managed since your marriage belongs equally to both partners—a 50/50 split. Because some assets cannot be divided right down the middle, settlement negotiations work toward equitable division of money, property and equities so that each partner leaves the marriage with equal benefit and equal responsibility for everything they owned as “joint tenants.” Whatever each partner owned before marriage is declared “sole and separate property” and cannot become part of the settlement except with the owner’s consent.
  • “DVRO” or “Domestic Violence Restraining Order”  If the couple has  a documented history of domestic violence, or if one of the partners feels the other represents a significant threat to him or her and the children, the Court can restrain the partners from any kind of direct contact. Orders of protection generally forbid the separated partners from entering one another’s residences  or coming into close proximity of the person protected by the Restraining Order.
  • Alimony or “Spousal support”  In the era of two-income households, questions of alimony have become irrelevant in well over half of all divorce cases. If both partners work and have approximately equal incomes, they may forego discussion of spousal support. Two caveats apply, though: First, if one partner earns substantially more than the other, then their primary consideration becomes maintenance of the children’s quality of life. Alimony or Spousal Support is taxed as income so that it may be in the custodial parent’s best interest to receive nothing but child support. Second, if one partner has supported the other through graduate or professional school, then he or she is entitled either to support for as many years as  it took to complete advanced study or to at least 50 percent of the difference between before and after degree salaries. Sometimes getting to an actual dollar amount in this particular instance can be difficult.
  • Child custody and visitation  Most parents retain joint legal custody of their children and then negotiate percentages of physical custody. Under California Law, parents must attempt to settle their custody issues with a Mediator before the Judge will hear the case. The California Child Support Guidelines suggest that the non-custodial parent will have physical custody of the children at least 20 percent of the time. In the state of California Family Court usually interprets the guideline to mean one evening each week and every other weekend.
  • Child support  California child support formulae depend on at least seven different variables so that no hard-and-fast rule applies. You can, however, estimate your payments by using an extremely user-friendly support calculator at the California Department of Child Support Services Website—

http://www.childsup.ca.gov/Default.aspx. A good introduction to all the rules and regulations governing child custody and support, the site explains the legal and financial requirements of separation and divorce.

Our office represents clients in Sacramento County, Placer County, Yolo County, El Dorado County, Amador County, San Joaquin County, Nevada County, Yuba County, Calaveras County, Solano County, Napa County, and Alameda County.