In the typical divorce case one party will file the divorce (petitioner) and the other party will respond (respondent). The party filing for the divorce must have the other party personally served (in most cases), and the other party has 30 days from the time they are served to file a response. If the other party does not respond their default may be taken. After a default is taken the petitioner can go forward and get a judgment without the other parties involvement.
One of the parties will usually request and file for child custody orders and child and/or spousal support. After filing the request for child custody and support, the clerk's office will set a court date out about 6 weeks from the time of filing (unless emergency orders are appropriate). At the court hearing child custody orders will be made and orders for child support, and temporary spousal support.
After custody and support orders are in place, the parties begin to work on settling their property issues (assets and debts). Usually, it takes a bit of time for the parties to gather the relevant information and to get a clear picture of what should happen in their case. It usually takes a couple of months as well for the parties to heal a bit emotionally enough so they are prepared to deal with finalizing their property issues.
All issues can be settled by agreement without court intervention. If the parties come together and agree on the issues, then we don't need to go to court and we can prepare a marital settlement agreement as to all issues. If the parties agree to some issues and not on others, we can stipulate to the issues they agree on and go to court on the remaining issues. A typical example is where the parties agree on child custody and child support, but not on spousal support and/or property issues.
Listed below are some general rules regarding a divorce case:
- The court makes child custody orders based on the best interest of the children. The court says continuing and frequent contact with both parents is in the best interest of children so long as visitation with either parent is not detrimental to the children
- Child support is calculated through a State certified computer program and a guideline amount is generated. Support is determined by considering the percentage of visitation with the children and the income of both parties, along with applicable credits such as union dues, monthly payments for health insurance and child care costs.
- Once a child support order is generated, either party can open a case with the Department of Child Support Services (DCSS) to have the order enforced.
- If there is an open case with child support services, any modification of the support order must be filed with the DCSS case number and DCSS must be notified.
- Spousal Support is initially calculated using a guideline amount through the computer program (dissomaster), and a temporary order is generated and the paying party pays the temporary until the court makes a final order when the judgment for divorce is finalized. See Family Code section 4320 for factors considered in making a long-term order . Spousal support is determined by the income of both the parties and by the standard of living during the marriage and the needs of the parties.
- In a marriage of 10 years or more the order for spousal support can go on for an indefinite period or will terminate when the receiving party remarries or dies. There are circumstances where spousal support can be modified or terminated without the occurrence of the events listed above.
- In a marriage of less than 10 years spousal support is ordered for a reasonable time. The courts use half the length of the marriage as a general rule of thumb for determining the length of time the order will continue.
Assets and Debts:
- California is a community property state. Community property is property that equally shared by both spouses.
- In general, all property and debts acquired during the marriage belongs to the community and benefit and responsibility is shared equally.
- There are certain acts that the parties may have done to change the character of the property during the marriage. There are special rules regarding how the character of property may be changed.
- In general, all property and debts acquired before the marriage and after the date of separation is separate property, and the benefit and liability goes to only one party.
- Property taken by one spouse by gift or inheritance is also the separate property of that spouse.
- The petitioner (filing party) must have lived in the State of California for at least 6 months, and within a particular county for at least 3 months prior to filing for divorce.
- A legal separation can be filed anytime and later amended to a divorce.
- By law it takes a minimum of 6 months for a divorce to become final.
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