DOES ONE HAVE TO GO TO COURT TO OBTAIN A DISSOLUTION OF MARRIAGE?
A court of law is the only way in which one can obtain a divorce decree, dissolution, legal separation, nullity, or other form of terminating a marriage. Other than the termination of the marital status, the court also has jurisdiction to resolve the other issues which are intertwined in the existing marriage which include, but are not limited to, custody and visitation rights, division of property of the marital estate, spousal support, child support, restraining orders, etc.
WHAT IS INVOLVED IN STARTING THE PROCESS FOR A DIVORCE OR DISSOLUTION?
The first step would be the filing of a properly executed petition with the appropriate court. The court must have what is called jurisdiction, which would entail satisfying the requirements of residency within both the county of filing 3 months before filing the petition and the state of California 6 months before filing the petition. Without this threshold requirement being met, the court would not have the jurisdiction to hear the matter and execute an order or decree of divorce, or dissolution, or like orders terminating the marital status. Legal separation requires only that one party be a resident of the State of California and of the county in which the matter was filed.
HOW LONG DOES THE PROCESS TAKE TO OBTAIN A DIVORCE OR DISSOLUTION?
The earliest upon which the marital status may be terminated (that is returning both parties to the status of "single") is six months from the date the other party was served with the petition. If there are contested issues involved, it can be several years before all of the issues involved may be resolved by the court. The decree of dissolution has full effect as soon as it is signed by the judge.
WHAT IS A DISSOLUTION OF MARRIAGE?
A dissolution of marriage (formerly "divorce") is the legal termination of marriage. The grounds for terminating a marriage in California are irreconcilable differences and incurable insanity. No fault is required.
WHAT IS A LEGAL SEPARATION?
Legal separation is a legal status conferred by a court, where the parties remain married, but the court sets the rights and liabilities of the parties with respect to child custody, support, visitation, alimony, property and debts. A legal separation may be converted to a dissolution once the jurisdictional requirements have been met as described above.
WHAT ABOUT THE DIVORCE KITS AND PREPRINTED FORMS THAT ARE AVAILABLE? WHAT IS SUMMARY DISSOLUTION?
Family law is a complex area of the law which is not well served by simplistic forms that do not address all of the issues and areas concerned if the individual is not well versed or has not consulted with appropriate legal counsel to review the facts and problems of each individual case. The lasting effects of decisions made in haste without proper advice would militate against the use of such forms. However, California offers a procedure called Summary Dissolution. It requires that the parties be married less than five years, have no children, do not request spousal support, own no real estate, have debts totaling less than $10,000 (excluding automobiles) and agree on the terms of the settlement. Forms and instructions for this process are available through the Superior Court Clerk.
WHAT IS AN ANNULMENT?
An annulment is a method of voiding the contract of marriage. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted if the initial marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract, or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect.
WHEN CHILDREN ARE INVOLVED WHAT FACTORS DOES THE COURT CONSIDER WHEN AWARDING CUSTODY AND VISITATION?
The court looks to many factors affecting the best interests of the children. The extent of involvement of each parent in the routine of the children and the schedule of responsibility prior to separation are important as well as the parenting skills of each. There is a preference in California for joint custody and a schedule to insure continuing and frequent contact with both parents. However, many other factors such as domestic violence (physical and/or emotional), alcohol and drug abuse, the ability or inability of one of the parents to cooperate in making decisions related to the children and other factors which affect the well being and best interests of the children.
WHAT IS CUSTODY? WHAT IS THE DEFINITON OF JOINT CUSTODY?
The court considers two types of custody: legal and physical. "Legal custody" involves the decision making in areas such as education and medical treatment as well as issues regarding the safety of the children. "Physical custody" involves the actual time spent with each parent. This time may be designated as custody, period of responsibility, or visitation. "Joint" may mean equal time or it may mean unequal time. The age and developmental stage of the children are important factors in setting a visitation schedule. The schedule will need to change as the children grow older. A schedule that is appropriate for a one year old will usually not be appropriate for an eight year old.
CAN A CUSTODY OR VISITATION ARRANGEMENT BE CHANGED AFTER THE COURT HAS MADE AN ORDER OR JUDGMENT?
A custody or visitation arrangement may be changed. If the order or judgment was final, the parent requesting the custody or visitation change must show a change of circumstances affecting the best interests of the children. If the order or judgment was temporary, then a change of circumstances need not be shown and the court will look at the best interest of the children only.
CAN ONE PARENT MOVE AWAY WITH THE CHILD?
This is a very complex and ever changing area in Family Law. Under some custody arrangements, it will be easier for the primary custodial parent (the one with more time) to move with the children. The result would be a complete change in the visitation schedule whereby the non-moving parent will usually have significantly less time with the children. In many cases, a child custody evaluator will be appointed by the court to assist in gathering information for the court to make a decision. The court may not allow the move if it would be detrimental to the child(ren)'s relationship with the non-moviong parent.
WHAT IS A REGISTERED DOMESTIC PARTNERSHIP?
A registered domestic partnership between same sex couples and opposite sex couples where one partner is at least 62 years old is a legal relationship now recognized by the State of California. As of January 1, 2008 registered domestic partners have the same rights and liabilities as to property, custody, spousal support, and child support as in a dissolution of marriage. The registered domestic partnership must now be dissolved in the same way as a marriage.
WHAT ARE PRE-MARITAL AGREEMENTS?
These are also referred to as pre-nuptial agreements. This is an agreement between persons intending to marry to fix their rights and liabilities regarding property and spousal support in case of divorce, separation and/or death. This agreement would supercede the rights and liabilities set forth in statutes, codes and case law. It is recommended that these agreements be completed well in advance of the wedding date because of statutory times that may affect the validity of the agreement.
POST-MARITAL AGREEMENTS
These are the same as pre-marital agreements except that they are made after marriage. They require additional precautions because of the statutory fiduciary duty relationship imposed on married persons.
CO-HABITATION AGREEMENTS
This is an agreement between two unmarried or non-domestic partner persons who are living together. The agreement may include provisions which deal with property rights and support between the persons. This agreement is intended to set forth any agreements as to sharing property and support instead of relying any legal rights set forth in statutes and case law.
DOMESTIC PARTNERSHIP AGREEMENTS
This type of agreement is the same as a pre-marital or post-marital agreement except that it is between registered domestic partners.
