What is a dissolution proceeding?

 

In California, the legal proceeding to terminate a marriage is called a petition for dissolution of marriage, a petition for legal separation, or  a petition for nullity of marriage.     The most common is the dissolution of marriage proceeding, which most people still call a divorce. 

 

What is a no-fault divorce?

 

This means that the spouse who files for the dissolution does not have to prove that the other spouse was at fault.  Under the old fault-based system, a divorce could not be granted unless the plaintiff proved abandonment, adultery or cruelty.  Under the present law, the grounds for dissolution of marriage are “irreconcilable differences” or “incurable insanity.”   No-fault divorce also means that the spouse who does not want the divorce cannot stop it from taking place.  The petitioning spouse can proceed to dissolve the marriage without the consent of the other spouse. 

 

How long does a dissolution take?

 

California has a six-month waiting period, which begins when the respondent is served with the summons and petition for dissolution.  Complex cases will take longer than six months to resolve, but even in those cases, it is possible to terminate the marital status after six months, and reserve jurisdiction over all other issues.  The court will impose conditions on the spouse who seeks this “bifurcation of marital status” before all the other issues are resolved. 

 

How is child custody decided?

 

California law requires that the parents participate in mediation before the court can make any orders for child custody and visitation.  If the mediation does not result in an agreement, the court will decide.  Sometimes the court will order a custody evaluation to obtain more information about the parents, and to assist in determining the best interests of the children.

 

In California, there are two types of custody: legal and physical.  The modern trend is to avoid the label “custody,” and to use the phrase “child sharing plan” or “parenting plan.”

 

Legal custody means the division of parental responsibilities to make decisions about the child.  “Joint legal custody” is the most common form of legal custody, and it means that both parents shall share the right and responsibility to make the decisions relating to the health, education and welfare of the child.  A parent will be granted sole legal custody, meaning sole decision-making power, in cases where the other parent has demonstrated lack of fitness to make such decisions, for example, where the other parent a convicted felon or a domestic violence perpetrator. 

 

Physical custody means where the child is actually residing.  “Sole physical custody” means that a child shall  reside with and be under the supervision of one parent, subject to the court’s power to order visitation with the other parent.  “Joint physical custody” means that each of the parents has significant periods of physical custody.

 

What about child support?

 

Under California law, child support is decided by a complicated algebraic formula.  All the judges, and most attorneys, have computer software programs to perform the calculations.  Reduced to its simplest terms, the child support formula is based on the income of each parent and the percentage of time each parent has responsibility for the children.  The calculation is complex because it starts with gross monthly income, and then deductions are made for federal and state taxes, medical insurance and mandatory retirement.  Further adjustments are made if a parent pays mortgage interest and property taxes, which are deductible from federal and state income. 

 

For more information about child support, please see the topic “Child Support.”

 

What about alimony?

 

Alimony is known as “spousal support” in California.  Spousal support that is ordered at the beginning of a dissolution proceeding is designed to maintain the status quo as much as possible, and is usually based on a guideline that varies from county to county in California.  When a judge orders spousal support at trial, the judge must not use the guideline, but must consider a long list of factors, including the length of the marriage, the age and health of the parties, the marital standard of living, the earning ability of each party, the assets and debts of each party, the extent to which the earning ability of the supported spouse was affected by devoting time to domestic duties, and so forth. 

 

A marriage of more than 10 years is presumed to be a long-term marriage.  In a marriage of long duration, the court is not permitted to terminate jurisdiction over spousal support, unless the supported spouse agrees in writing to a termination date.

 

What about community property?

 

California is a community property state.  Community property is all property acquired during the marriage, even if it is in the name of only one spouse.  In a dissolution proceeding, the court must divide the community property equally between the spouses. 

 

Usually the family residence is community property, and it will either be sold, or awarded to one spouse, with assets of equal value going to the other spouse.  Complications arise because sometimes one spouse owned a house before the marriage, and added the other spouse to the title after the marriage.   Even if a spouse kept the separate property house in sole title, the community may acquire an interest in the separate property house, if  payments on the mortgage or improvements to the house were made during the marriage.  Another common situation is a house that was purchased using the separate property funds of one spouse for the down payment; that spouse will normally be entitled to reimbursement for the separate property contribution.

 

Employment benefits such as retirement plans, stock options and profit-sharing plans are also community property, to the extent they were earned during the marriage.    These assets must be analyzed and sometimes appraised, before they can be divided. 

 

A business, even a business operated by only one spouse, may be community property.  The operating spouse will usually be awarded the business, and the other spouse will be awarded assets of equal value.  It may be necessary to appraise the business.

 

How much does a divorce cost?

 

It is impossible to estimate legal fees for a divorce.  The total cost depends on whether you and your spouse are able to reach agreements, between yourselves or with the assistance of your attorneys or a mediator.  The more agreements you can make, the lower the cost.  Attorneys charge for the time spent working on the case based on their hourly rates.    Mediation is much less expensive than litigation, if it is successful and results in an agreement.