Divorce: Everything Is Going To Be Alright!

TLF has seen literally hundreds of people get through divorces. One sure thing is that, in the end, and over time, everything usually turns out alright. Of course, both marriage and divorce have their ups and downs, as this article from the LA Times about weight gain/loss associated with both discusses.

There are a few helpful hints you should think about when it comes to divorce. First, you need to understand California is a "no fault" state. This means you do not need to have any reason for getting divorced. This also means evidence about infidelity or bad behavior is usually totally irrelevant. Only one person needs to want to get divorced for it to happen. One spouse's objection is, again, irrelevant. No counseling is required. All one party has to do is check the box, sign the form and pay the fee.

A divorce is a civil lawsuit. You cannot get a divorce unless a petition for dissolution of marriage is filed with the court and a judge enters a judgement of dissolution. Then your marriage will be done, you will be divorced and you will be a single person again. The process will take, at a minimum, six months to complete. If the case is contested, then it proceeds just like any other civil case. Check out TLF's helpful Lawsuit Roadmap to get a better idea of what that entails.

Divorce really boils down to a lawsuit about assets and debts. Since California is a community property state, the general rule is add it up and divide by two. Assets acquired during the marriage usually are community property that have to be split between the parties. Debts incured during marriage are also usually community property. Those, two, are split between the parties. Assets are not divided in kind. Rather, the entire property and debts of the marriage (called the "community estate") are divided so that each party receives their equal share. If one party end up getting bit more than the other the court will order a equalization payment in the form of a money judgment owed by one spouse to the other. The point to remember, as with any lawsuit, is settlement is almost always the best option.

People thinking about getting divorced usually ask about support. The two main factors to be decided when talking about support is how much and how long. If you were married more than 10 years it is considered a marriage of long duration. This means support could be awarded for an undetermined length of time, or even for the rest of the life of the supported spouse. This dreary reality is tempered by the fact California also has a public policy to encourage all supported spouses to become self-supporting, i.e. "get a job".

If you were married less than 10 years then usually the length of time for support is half the lenght of the marriage. For example, if you were married for eight years then support will usually be paid for four years.

How much support is paid depends upon the payor's ability to pay and the payee's needs. The court will usually take the numbers from financial documents filed by the parties, called Income and Expense Declarations, and enter those numbers into a computer which spits out the support based on formulas prescribed by the State. Child support uses the same formula. However, it also takes into account how much time you spend with the kid(s). Check out this link to help you calculate what your child support may be.

People also usually ask about child custody as well. The basics are this: legal custody involves making the decisions about the kids' health, education and general welfare. Should they have that operation? Should they go to this church, school, etc. The presumption is that both parents share legal custody of the kids. Sometimes the court can order that the partents take classes to provide them the skills they will need to deal with each other where their kids are concerned. Because when you have kids you may be divorced but you will always have a relationship with that former spouse through your children. The better that relationship is after you get divorced the better it is for your kids.

The other part of custody involves physical custody. Boiled down this means who the kids are going to live with most of the time. 50/50 can be ordered by the court. However, as the kids grow older most judges want them to have a more stable and predictable home environment. This means they probably will be at one parent's house most of the time during the week so they can concentrate on school and foster social relationships. The parent who has the kids most of the time in this kind of situation is said to have "primary physical custody" and is said to be the "custodial parent".

The typical kind of schedule for kids going to school is that the non-custodial parent will get the kids after school on Friday until school begins again on Monday on every other weekend. The non-custodial parent usually will be given a mid-week visit (usually dinner) on the weeks when they have no weekend visitation. The non-custodial parent usually gets a couple of weeks with the kids during the summer as well. Holidays are split and a schedule is set.

The court will retain jurisdiction over you and your children and the issues of custody, visitation and support, until your kids are adults. That means your divorce case, at least where these issues are concerned, can go on and on for years. As long as support is being paid, each spouse has the right to obtain the financial information of the other parent until support is terminated. Each spouse has the right to go to court to seek modificaton of any of the order concering custody, visitation and support until your children are emancipated.

A word of caution: the State of California takes very seriously the notion that a parent ordered to pay child support should actually pays that support. In fact, California has an entire department, called Child Support Services, dedicated to getting people to pay their past due child support. Find an application for DCSS help in collecting past due child support owing right here.

A word of caution: Every decision a family law judge makes about child support, custody and visitation must be determined in the light of what is in the children's best interests. The very quickest way you can irritate the court is to give the judge the impression you are doing things for the wrong reason when it comes to your children. Recognize the fact that in most cases it is in your kids' best interest to have a healthy, happy relationship with your ex-spouse and you should try to foster that as much as possible.

These are just a very few of the most basic issues which tend to be involved in most divorces. There are many other issues and nuances that only a skilled attorney should ever handle. If you have no children and no assets and no debts then you might be able to do it yourself. Most of the time, even that proves challenging for the novice. Otherwise, you should consider an attorney. TLF has been practicing in the area of family law since 1993. Call us and Nick Tepper would be pleased to discuss your case and your concerns. And do not ever forget: everything is going to be alright!

--Nick Tepper

Categories: Divorce
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