How to Divorce in California - The Ultimate Guide on Divorce Filing, Cost, Process and More
This guide on the California divorce process walks you through just about everything you want to know.
How divorce in California really works
California divorces include ending the marital status, custody, support, asset and debt division. If you asked ten different men and women about their experience with divorce in California, you may get ten different opinions and perspectives.
If you asked ten different divorce lawyers about getting a divorce in California, you would learn about different styles and different perspectives on the subject.
Why is there such a difference in perspective about divorce?
You have a unique personality. Your family and friends also have unique personalities. You approach problems differently than your family and friends do. Your risk tolerance is likely different. Your ability to reason and the things you become emotional about are unique to you. There may be similarities between you and others but no person is exactly like you.
How should you approach your divorce? What is the best way to learn about your journey ahead? We wrote this incredible guide so we can walk you through every step. Ready to learn how to get a divorce?
Where do we start?
Everything starts with knowledge. You must take advantage of the resources available to you and better understand the process. If you wish to be informed, you have to get informed.
Here are the topics we cover. If you want to jump ahead, click the link and you will jump to that section.
- Divorce laws
- Family law judge's role during a divorce
- Each spouse's role during a divorce
- Attorney's role during a divorce
- Legal separation versus a divorce
- Annulment versus a divorce
- How long does a divorce take?
- The "waiting period" for a divorce
- Attorney's fees
- Costs of a divorce
- Process of divorce
- Steps toward a divorce
- Adultery's impact on a divorce
- Separation of finances
- Trial separation before a divorce
- Parenting time agreements before a divorce
- Uncontested divorces
- Contested divorces
- Child custody orders
- Child support orders
- Spousal support orders
- Property division
- Dividing debt
The laws of divorce in California are either procedural or substantive. Procedural laws describe how to do something. For example, these laws may state the deadline for filing and serving documents, or the format of documents.
Substantive California divorce laws state what you must do and what elements or factors the court must or may take into consideration when the court makes orders.
California's "best interest" standard for child custody orders is one example of substantive law. California's guideline, child support formula is another example. Other examples include the following:
Think of substantive divorce laws as the landscape and our procedural laws as the road signs that allow us to navigate that landscape.
To get a successful divorce in California, you must become familiar with divorce laws
I will give you an analogy.
Assume you had a condition that required surgery. The doctor told you about your condition, the treatment plan and the prognosis.
Most people want to conduct some independent research to become more familiar with the condition. Most doctors will give education material so the patient can become more familiar. There are also resources available online. Online resources can be helpful if the author of those resources wrote them in an easy to understand way.
A good example in the legal field is our family law website. Here, you can become familiar with divorce and parentage law and procedure. You can gain incredible information (not legal advice) to become familiar with the issues you may face in a divorce or parentage case. However, there are also websites that are misleading or the material written on it is far too complex, boring or overwhelming.
How will this information benefit you?
Will it benefit you to find and read online material about your condition? Will you benefit from understanding the importance of the treatment plan the doctor ordered and other potential treatment plans about which you can ask your doctor? How much will it help you to have a depth of knowledge so you can use it to communicate with your doctor in every respect?
The answer is of course yes.
For the same reason, you should familiarize yourself with the process of divorce in California and California's divorce laws. You should not use that to represent yourself, any more than you should use online medical literature to self-diagnose or self-treat.
However, to have access as you do on this website to informative material on the subject of divorce in California, you gain a significant head start over your spouse regarding the divorce you are about to undertake or have already undertaken.
The family law judge's role depends on you and your spouse. When you go through a divorce in California, you decide how peaceful or contentious your divorce becomes. The more peaceful you make your divorce, the less of a role a stranger in a black robe (called the judge) becomes. The more contentious your divorce is, the more the family law judge will make the decisions.
The question then becomes when and how does the family law judge make the decisions?
We wrote a terrific guide on how a family law judge makes decisions. Click on the image below to go there.
You and your spouse are in the driver's seat. It is you two, together, who decide whether the divorce case settles or proceeds to court. That is good news because you are both in control. It is also bad news because you both have to agree for there to be a settlement.
Here are the top five things you should keep in mind about your role and that of your spouse as you get ready for a divorce.
1. Anger, bitterness or any other form of hostility will not resolve issues
You and your spouse should take a calm and logical approach to resolving issues.
2. Treat financial decisions like a business transaction
The house is not Jerusalem and this is not the Crusades. Those cars do not have some intrinsic emotional value. The judge does not care about sentimental items. Money in bank accounts, brokerage accounts and retirements are just money and subject to the same laws, regardless of who earned them during the marriage. Your focus is community property versus separate property.
Child support is a computer program and the guideline formula does not care whether you have a personal opinion on its fairness. Spousal support may be a temporary order or a final order. The temporary order is usually also a computer program. The final order is an analysis of Family Code 4320. We discuss this later in this guide.
3. Take your disclosure duties seriously
If you provide inaccurate or incomplete disclosures to your spouse, it may financially haunt you during your divorce in California and even after the judgment.
4. A divorce does not have sidelines
Divorces in California are a full participation activity. That means you are in the game, actively involved in the decision-making process and execution on those decisions.
5. You and your spouse are in control of whether you two settle your divorce
Nobody can force you into a settlement. An experienced and skilled divorce lawyer will not persuade you into anything. He or she will provide you with options and recommendations. It is your job to listen to the advice, make yourself knowledgeable about what is in front of you and then make smart choices.
I hope that many of those choices will be correct. Sometimes, just like life, you make choices that in hindsight you wish you had not made. Divorce is not a perfect, functional process. Just like life, there is uncertainty and sometimes dysfunction. You do not have a crystal ball for your day-to-day life, do you? You will not have one for your divorce either.
Your attorney has three important roles during a divorce. The three roles are the following:
The confidant role
The "confidant" role allows you and your attorney to have confidential and privileged communications. Confidentiality and the attorney-client privilege is the heart of the attorney-client relationship. It allows the client to state candidly his or her concerns. It allows the client to ask any question he or she wishes.
The legal counselor role
The role of "legal counselor" provides the client with objective advice. When going through a divorce in California, you do not want a cheerleader or a barking dog in a suit.
Cheerleaders are the type of attorney who mislead you by telling you what you want to hear. Such lawyers usually only focus on your payment to them and ensuring they sell you on retaining them.
The barking suits are overzealous lawyers who are thin on substance and thick on bluster. They get you emotionally riled up so you will make emotion-based decisions that usually waste a lot of time and cost you a lot of money.
The advocate role
The "advocate" role is the one most people associate with legal representation. A divorce is no different from any other lawsuit between two people. Your lawyer is supposed to be your zealous advocate. Zealous advocate means advocating your position within the confines of the facts and the law. It does not mean being an amplifier of positions that have no factual or legal merit.
The court-appointed attorney for the children
Some divorces require the court to appoint a lawyer for the children. We refer to these lawyers as, "minor's counsel." The minor's counsel represents the child or children. His or her job is to:
- Interview the children,
- Investigate the facts,
- Speak with spouses and any other relevant persons to the investigation, and
- Make requested orders to the family law judge, if the parties are not able to resolve their disputes.
Divorces in California typically see minor's counsel when:
- The child has a preference as to which parent he or she wants to live, or
- Other facts concerning child custody and parenting time require a deeper investigation than what a court hearing allows.
To learn more about how and when the child has a voice with a divorce in California, please check out our guide on the subject by clicking on the image below.
Spouses often confuse the term "legal separation" with the term "physical separation" or just plain separation.
Legal separation requires a court judgment that decrees the spouses legally separated. Legal separation is similar to a divorce in California in that a legal separation judgment can include:
- Orders on custody,
- Child support and spousal support,
- Division of assets and debts, etc.
However, it does not include the end to the status of the marriage.
Legal separation judgment
Spouses typically obtain a legal separation judgment instead of a divorce judgment for the following reasons:
- Religious reasons, or
- Because they assume it will help one of them maintain their health insurance.
Whether or not a health insurance company will maintain a spouse on the health insurance policy as a dependent is something about which you should speak with an insurance professional. It is best not to assume a legal separation judgment will protect you or your spouse in that way. It is best to check and be sure.
Unlike a divorce, a legal separation judgment requires both spouses to consent to the judgment. That means if one spouse wants a legal separation and the other spouse wants a divorce, the court will order a divorce.
Please read our article on legal separation in California titled How To Get a Separation in California? Let's Discuss Legal and Physical.
Think of an annulment judgment as an eraser. The eraser undoes the marriage as if it never existed.
Annulments can get very complex and are easy to screw up. Instead of dedicating a significant amount of time here, we encourage you to read our comprehensive guide on how to get an annulment in California.
How long a divorce takes depends in large part on whether the divorce is contested or uncontested. Even a contested divorce breaks down into two categories:
- Those contested divorces where the spouses agree on nothing, and
- Those divorces with spouses that are able to resolve some of their issues, but not all of them.
The best way to determine how long it takes to get a divorce in California is to consider the following hypothetical.
- Let us say the typical middle-class and middle-income divorce in California takes approximately three months to six months to complete if it is uncontested.
- Let us also say the typical middle-class and middle-income divorce in California that is high conflict takes between one and one-half years to two years to complete.
While these bookends of time do not fit every case, we believe, based on our extensive experience, they fit most cases.
Start adding months for every major issues not resolved
Now take the lower timeframe and add several months for every major issue the spouses are unable to resolve. For example, if spouses resolve everything without a reasonable period, other than spousal support and that issue goes to trial, you are probably looking at a divorce under one year.
The above is for middle-income and middle class divorces. The more complex the divorce issues, the longer it takes to complete a divorce in California. That is because complex issues such as high asset cases or those that include complex income structures often require the retention of forensic accountants.
How does child custody affect the duration?
Child custody also affects how long it takes to complete a divorce. High conflict, child custody cases often involve the appointment of one or both of the following:
- Private child custody evaluators,
- Lawyers that represent the children, and/or
- Other experts
Such cases may also include other court ordered investigations or involvement by child protective services if there are allegations of child abuse or neglect.
Child custody disputes of this magnitude may cause a divorce to drag on for years. That is why in many cases the spouses, through their lawyers, bifurcate (which means "separate") the custody issues from the rest of the divorce. That way, one does not impact the timely conclusion of the other.
Most people know there is a six-month timeframe in California divorce law but most people have no idea what the six months means.
Fortunately, we have an article for that too. The title is, California Divorce Waiting Period of Six Months Explained. It explains everything you want to know about the six-month timeframe to end the marriage's status.
Here is a quote from the article you will find helpful if you do not want to read the whole thing:
"…the California divorce waiting period starts to run from the date the divorce summons and petition is served on the respondent or the respondent makes an appearance, whichever occurs first. An "appearance" is usually the filing of a response to a petition but there are other ways for a respondent to "appear" as far as the law is concerned. Appearance does not necessarily mean to physically appear in front of a judge…"
The subject of attorney's fees in a California divorce can, by itself, be a small book. The Family Code has several sections that set forth how and why a spouse may obtain an attorney fee award against the other spouse during a divorce in California. However, just as there are many ways to seek attorney's fees in a divorce, there are just as many ways to oppose such a fee request.
At the end of this section, we will provide you with links to some great guides we wrote on the subject of attorney's fees. Those will provide you with comprehensive information on this topic. Since spouses often dispute attorneys' fees in contested divorces, we want to share with you the most common attorney fee codes used during a divorce in California.
Family Code 2030
Family law judges and divorce lawyers call this the "need" based attorney fee statute. During a divorce in California, it gives the court the power to order attorney's fees and costs based on the relative circumstances of the spouses. That includes each spouse's need and ability to pay fees.
This is a powerful statute because it requires the court to order fees if the court finds the need and ability to pay as well as the relative circumstances that justify it.
Family Code 271
This code section gives power to the court to order attorney's fees in the form of "sanctions" against a spouse. The sanction depends on how each spouse's conduct frustrated or furthered California's public policy to reach reasonable compromises of disputes. We often see this code section during a divorce in California when one spouse takes such unreasonable positions that it causes the other spouse to incur significant attorney's fees and costs.
Family Code 6344
This code section does not necessarily apply to every divorce in California. Instead, it applies to domestic violence restraining order actions. It states:
"(a) After notice and a hearing, the court may issue an order for the payment of attorney's fees and costs of the prevailing party.
(b) In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney's fees and costs, the court shall, if appropriate based on the parties' respective abilities to pay, order that the respondent pay petitioner's attorney's fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney's fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties' respective abilities to pay."
Divorce and domestic violence do sometimes cross paths so a spouse entitled to fees under this code section can bring such a request in the divorce case.
Family Code 3027.1
This code section allows for attorney's fees against a party or other persons who knowingly make false allegations of child abuse against another party. We sometimes see this in divorce cases.
If one spouse does knowingly make false allegations of child abuse against the other spouse, the falsely accusing spouse may face the harsh and punitive consequences of this code section. Even that false accusing spouse's attorney may have exposure to an attorney fee award against him or her.
Read our attorney's fees guides
We encourage you to read the following amazing guides on attorney's fees and costs spouses may seek during a divorce in California and even post judgment.
Spouses often lump attorney's fees and costs into one category. However, fees and costs are different and spouses who expect to go through a divorce should understand the differences. That will help those spouses better prepare for the fees and costs ahead and therefore avoid surprises.
Costs (unlike fees) may be internal or external. Internal costs are those an attorney may charge pursuant to the retainer contract for items such as copies, facsimile charges, parking, etc. We are not going to focus on internal costs since those are usually minimal.
External costs are costs incurred to other persons or entities as part of the divorce in California.
Here are examples of external costs you may incur during a divorce
While this is not an exclusive list, the most common external costs are:
- Money paid to the court for filing fees,
- Money paid to a process server or company who employs them for personal service of documents,
- Money paid to court appointed experts such as the child custody evaluator, court appointed investigator, discovery referee, special master, forensic accountant, appraiser, etc.,
- Money paid to your own consultant or expert, which may include a forensic accountant, appraiser or private investigator,
- Money paid to a court-appointed lawyer for the child or children. This is called a minor's counsel,
- Money paid to a lawyer other than your family law lawyer because you need advice on legal issues that cross over into the family law case. This may include estate planning, insurance, business or corporate law, tax law, civil litigation, etc., and
- Money paid to an attorney to prepare a qualified domestic relations order. A qualified domestic relations order, also called a QDRO, is a document prepared to divide the retirements.
It is of course acceptable to look at money paid to other lawyers as simply other fees versus costs.
When we think of "costs", we think of anything not directly related to the money you pay to the family law attorney for the family law representation.
Regardless, in whatever way you want to categorize such expenses should not take away from the importance of you understanding them and anticipating whether they may become necessary during your divorce in California.
At the end of this section, we provide you with a link to our extensive guide on the California divorce process. If you want to know the details of the divorce process in California, that guide provides you with one of the best (we believe, the best) reading materials you may find on the Internet.
The process of getting a divorce in California starts with a petition for dissolution of marriage and ends with a judgment for dissolution of marriage. Dissolution of marriage is the legal terminology for "divorce."
For this summary, we assumed the respondent actually responded to the dissolution petition and it was not a default case. A default case is one where:
- The petitioner serves the respondent with the summons, petition and related documents,
- The respondent fails to file and serve a timely response, and
- The petitioner then successfully obtains an entry of default and subsequent default judgment against the respondent.
A default means the respondent's failure to participate shuts him or her out of the process.
Summary of the ten step divorce process
Here is a bullet point summary of that process. When you read the words, "if necessary", that means not every divorce includes that specific process.
1. Filing for dissolution of marriage, service of the entire package and response to dissolution of marriage,
2. Petitioner's service and respondent's service of their respective preliminary declaration of disclosure,
3. Discovery requests and responses, if necessary. Discovery is the formal request for information or documentation from the other spouse,
4. One or more requests for order that seeks temporary orders, if necessary. A request for order is a request to the court for temporary orders during a pending divorce. These requests usually include:
- Temporary child custody and parenting time,
- Temporary child support,
- Temporary spousal support,
- Attorney's fees,
- Property control and restraint, and more.
Both the petitioner and the respondent may file a request for order and there is no limitation on how many either may file. Most divorces in California include a request for order regarding custody and child support. Those where there is a disparity in income usually also include spousal support.
5. Settlement negotiations, which may be a combination of the following:
- Settlement communications between the spouses and/or the lawyers,
- Voluntary settlement conferences, and
- Mediation and/or a mandatory settlement conference set by the court.
It is common for the court to set a mandatory settlement conference.
6. The filing of a request by either spouse to set a trial setting conference, if necessary. The trial setting conference, which depending on the county may have a different name, is the date where one or both spouses ask the court to set the divorce for a trial.
7. Petitioner's service and respondent's service of the final declaration of disclosure.
The final declaration of disclosure is similar to the preliminary declaration of disclosure, except it usually comes near the end of the case. For most divorces in California, the final declaration of disclosure is the last opportunity to make complete and accurate disclosures. Some spouses choose to waive the final declaration of disclosure. There are specific forms designed for such a waiver.
8. The exchange of trial related documents, if necessary. If the court sets the case for a trial, the court will likely order the spouses and/or attorneys to exchange certain trial documents. These usually include a trial brief and various types of joint statements as well as witness and exhibit lists.
9. A trial on any issues that did not settle.
10. The final judgment for dissolution of marriage, which may be by settlement, trial or a combination.
The order of events differs depending on the divorce
While the petition and response come first and the judgment or judgments come last, the order of everything else may be different depending on the divorce case.
Some cases launch immediately into the request for order process even before the spouses exchange disclosures or conduct discovery. Similarly, discovery may come before or after disclosures.
In some divorces in California, settlement negotiations may start early. In others, it may start later. In most, there is a combination of some issues ripe for settlement discussion early while others have to wait until the exchange of disclosures or discovery.
Just as you are a unique person and your spouse is not the same person as you, your dissolution of marriage will be different from those of others. Do not assume there is a one-size-fit all process of divorce in California. Highly experienced and skilled divorce lawyers like those at our law firm will provide you with a strategy customized for your specific divorce case.
Here is a link to our guide on the California divorce process.
A petition for dissolution of marriage is the beginning of a divorce in California. What leads to that beginning?
Before a spouse files a divorce petition, there is a breakdown in the marital relationship. In this section, we will discuss:
- The most common issues that cause a breakdown in the marital relationship, and
- Different ways spouses address such issues between the breakdown of the marriage and the filing of the divorce.
Infidelity as a cause for the breakdown of the marriage
Infidelity is a common cause of the breakdown in the marital relationship. At its core, spouses treat infidelity as a breach of trust and respect. A marriage usually does not last if one or both are lacking. Marriages do recover from infidelity when the spouses are able to restore trust and respect.
Difficult financial circumstances
Difficult financial circumstances also cause a breakdown in the marital relationship. The more extreme the financial difficulties, the greater the hardship on the relationship.
Our experience is this issue affects those marriages that lacked good communication between the spouses regarding the finances. This disconnect existed because the spouses did not freely share information about the marital estate, and its income to debt ratio.
Nearly every divorce we have seen with the root cause as financial difficulties involved spouses who lived as islands within the marriage and communicated little about financial issues. It is not difficult to see why this would be the case. If spouses are open and honest with each other and take the time to inform each other of the marriage's finances (the good and bad), they can collaborate to resolve problems. Even great problems are not a surprise. Either concealment or deception causes marital breakdowns in this respect.
Lack of love as a cause for breakdown in the marital relationship
Sometimes, good people with all the right intentions just drift apart. It may not be anything either spouse did. It is simply the spouses losing the attraction or affection for each other. These divorces are the most amicable and rarely result in high conflict litigation.
Substance abuse as a cause for the marital breakdown
Substance abuse is a common reason spouses have a breakdown in the marital relationship. Over the years, we noticed it becoming increasingly more common as the root cause for that breakdown. While substance abuse used to be alcohol or illicit drugs, prescription medication is now a major factor in many substance abuse cases. It is common for a spouse to obtain prescription medication not prescribed to him or her or simply abuse prescribed medication.
These divorces can present special challenges. Men or women who suffer from substance abuse often behave erratically and are rarely predictable. In extreme situations where the substance abuse is ongoing and long-term, the psychological effects of the abuse may cause the marriage to become high conflict, especially when children are involved.
Domestic violence or serious emotional abuse as a basis for the marital breakdown
Domestic violence or serious emotional abuse is also a reason for the breakdown in the marital relationship. Abused spouses often stay in the relationship with their abusers. Battered spouse syndrome is a term most people have heard. These cases present significant challenges when the abusing spouse is also the financial breadwinner for the family.
The filing of a divorce in California rarely causes an abusive spouse to stop the abuse. They transfer the physical abuse to something else - harassment, intimidation tactics and bullying during the divorce.
Child abuse as a basis for the breakdown in the marital relationship
Child abuse takes different forms. There is physical child abuse. There is child neglect. There is the exposing of a child or children to dangerous situations. We see the latter when one or both parents expose the child or children to those who abuse drugs, or who are otherwise engaged in misconduct that is unlawful or high-risk to minor children.
How do spouses deal with such situations when leading up to a divorce?
The situation that involves spousal or child abuse usually does not involve amicable and peaceful discussions between the spouses. It does not allow for a smooth transition for them and the children.
Abused spouses who intend to protect the children from the abuse usually focus on escape. They want to escape the dangerous situation and get themselves and their children to safety. Trying to negotiate with someone who is highly abusive is generally a waste of time and may place that spouse and/or the children in further danger.
Such spouses may seek sanctuary at shelters or with family or friends. The most important thing such spouses can do is get themselves to safety and then immediately seek the protections available to them by law. These protections include but are not limited to the involvement of one or more of the following:
- Law enforcement,
- Social services, and/or
- The Family Court when seeking a domestic violence restraining order or emergency child custody orders.
Let's address these three core causes as they lead to a divorce
What we provided you are three core causes for a breakdown in the marital relationship and which will then lead to a divorce in California. You have those actions that are illustrated below:
Marital breakups due to a breach of trust
Breach of trust cases are those we identified as infidelity, deception about finances or concealment about finances.
The steps toward a divorce will be different depending on how nefarious the breach of trust is between the spouses.
1. Situational or non-pervasive breaches
For example, if the infidelity was a one-time, situational occurrence as opposed to a pervasive and long-term scenario, the breach of trust is not as severe. In such a situation, the spouses should communicate amicably enough to avoid a high conflict divorce. The same is true with finances. If the spouses communicated about the marital estate and its financial situation but there was a lot of room for improvement in that communication, it should not lead to a contentious divorce.
2. Pervasive or malicious breaches
However, to give an extreme example, how can one spouse trust the other spouse if the other spouse engaged in the following:
- A malicious and long-term concealment of important financial information,
- Misrepresented his or her actions or intentions, and
- Deliberately harmed the other spouse in the process.
It is difficult to regain any trust of the offending spouse. The victim spouse's vigilance to ensure he or she immediately hires the proper professionals including but not limited to a family law attorney become even more critical than a typical divorce.
The overarching premise is this; the deeper the breach of trust by one spouse against the other, the more vigilant the other should be as he or she takes steps toward a divorce in California. In addition, the victimized spouse should consider whether trusting anything the perpetrating spouse says or does is wise. People rarely change and those who set out to hurt others are no exception.
What about those situations where the spouses grew apart?
What steps should they take toward a divorce in California? Spouses in such situations usually trust each other. Even if they are skeptical, it is not to the point where they cannot engage in an honest collaboration. Here are the steps we believe make the most sense for such spouses as they move toward a divorce:
1. Figure out parenting time
Do you have children? Then item number one must be to determine what parenting time makes sense for the children.
You and your spouse will collaborate in the decision-making process. During the divorce, we call this joint legal custody.
Parenting time can significantly vary, depending on the situation. If both parents work similar hours and the children are older, an equal parenting time makes sense, especially if both parents are the children share a sufficient bond.
Bonding is not one parent being more actively involved during the marriage, as long as that active involvement was not grossly disproportionate to the other parent. Courts do not belabor one parent or the other cooking more meals, going to a few more events, etc. during a divorce. The court focuses on the children's best interest and if their best interest means equal or close to equal parenting time, that direction makes sense.
2. Figure out each of your living arrangements
- Do you and your spouse want to live together, even when the two of you have a pending divorce? That is fine and many spouses do that.
- Do you prefer one of you to move out? That is also fine and common.
- Does a nesting agreement make sense where each of you have set times where you will be at the house with the children, so the children do not have to bounce from one house to another? Those are less common but some parents believe it makes sense short-term. It rarely if ever makes sense long-term.
Whatever you believe makes sense for you and the children should not wait many months to start. However, you should also not rush it. As we will discuss below, living arrangements and an agreement on payment of bills and financial support go hand in hand.
3. Come up with an agreement on payment of bills and temporary financial support
Winging it is one of the dumbest things you can do as you march toward a divorce. Things do not figure themselves out or fall into place. You must proactively communicate and reach agreements on financial issues with the help of an experienced family law mediator and/or each of your independent attorneys.
Sitting behind the computer and trying to figure out temporary support on an online calculator is dumb. Do not do it. Spend a couple of hundred dollars in a real substantive meeting with a highly experienced family law attorney so that he or she can run those support numbers for you and give you numbers that are consistent with what the court would order.
If financial security and due diligence is not worth $200-$400, then be prepared to make mistakes throughout your divorce. This is not the time to cut corners or take foolish shortcuts.
Payment of bills is an easier discussion but it connects with the temporary support. If there is enough of an income disparity between each spouse that justifies temporary support, the question becomes how the spouses will divide the day-to-day expenses.
For example, if one spouse moves out and that spouse is the one paying support, does it really make sense for that paying spouse to pay the mortgage for the house in which the other spouse lives? Once again, we come to an overarching premise - It is not reasonable to overextend one spouse in favor of the other, nor is it reasonable for one spouse to starve while the other one is quite comfortable.
There are equitable solutions to these problems and they start and end through the advice of an experienced California divorce attorney before you and your spouse start the divorce in California. That takes the guesswork out of the process. It creates smart divorce planning and preparation.
4. Please do not try to figure out division of assets and debts on your own
Who gets the house?
What do you and your spouse do about that business you and your spouse started during the marriage?
There are retirements, so what do you do with those?
It does not matter what the asset is or what the debt or liability may be. There is no skipping a consultation and the retention of a divorce attorney and/or divorce mediator.
Our recommendation consistently is that you should not only hire a divorce mediator (who had better be an experienced divorce attorney) without you also hiring your own independent attorney. The divorce mediator is not your advocate and may not be able to tell you information that a divorce mediator can tell you. That information can make a significant difference in your decisions, depending on the size of your estate.
If you have this dialogue and conduct the above due diligence before you even start a divorce in California, you are many long steps ahead of the great majority of people who launch into that California divorce unprepared. Getting ahead results in your divorce:
- Costing you less,
- Moving faster through the system toward a final judgment, and
- Being far less stressful on you and your children.
If I asked a room full of husbands and wives who expected to go through a divorce in California to raise their hand if they believed California to be a no-fault divorce State, the great majority of hands would go up. That is the common perception. For the most part, that perception is accurate. However, what most people do not know is "no-fault" does not actually mean without any consequence.
California has certain laws that result in consequences for pre-marital conduct
For example, a finding of domestic violence by one spouse against another spouse has a direct impact on alimony. A perpetrator of domestic violence who is the lower income earner may find himself or herself receiving less alimony or no alimony at all depending on various factors. For the impact of divorce and alimony, check out our article titled, California Spousal Support and Domestic Violence.
Recently, the California Legislature actually made child abuse a factor when determining alimony. Family Code 4320(i) states:
"(i) Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party."
What about adultery? Does it matter that a spouse engaged in infidelity? The infidelity, by itself, does not matter. However, since spouses are fiduciaries to each other, if one spouse spent community property funds on an extramarital affair, the other spouse has an argument the cheating spouse breached his or her fiduciary duties. That spouse may then argue for return of one-half of the community property funds spent on the affair.
No Family Code section directly addresses adultery and its impact. Instead, there are code sections such as Family Code 721 that state:
"(a) Subject to subdivision (b), either spouse may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried.
(b) Except as provided in Sections 143, 144, 146, 16040, and 16047 of the Probate Code, in transactions between themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following:
(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.
(2) Rendering upon request, true and full information of all things affecting any transaction that concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.
(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse that concerns the community property."
That is just one example. There is California case law through our Appellate and Supreme Courts over the years that broadened the fiduciary duty scope. Overall, a spouse has arguments he or she can make to recover some financial losses that result from infidelity.
This is just a short synopsis of this issue. Lucky for you, we wrote a comprehensive article on the subject of whether and how adultery affects divorce. The title of the article is How Does Adultery Affect Divorce?. Check it out if you want to learn more about this interesting subject.
Separation of finances before a divorce happens in one of two ways. The first is by agreement. The second is by the unilateral action.
Separation of finances by agreement simply means the spouses got together and came to an agreement as to how to separate finances before the divorce.
Separation of finances by unilateral action means the spouses talked and could not reach an agreement or the spouses did not even attempt to reach an agreement and one of the spouses did what he or she wished without any agreement.
In this section, we will discuss each of the scenarios.
Separation of finances by agreement
The more complex the spouse's financial structure is, the more the spouses will need one or more professionals to help them with the separation of finances. These professionals are usually an accountant, the family's financial advisor (especially if the family invests in stocks / equities) and an experienced family law attorney.
Some spouses do not need outside consultants for help. For example, if both spouses are W-2 employees who earn a modest income and the financial structure is straightforward, they may only need to figure out what to do with the following:
- Joint bank accounts,
- Joint credit cards, and
- Choices on how much money each spouse will contribute toward joint debts.
The best example of joint debt is car payments, mortgage payments and insurance payments. The more assets the estate has and the greater each spouse's income, the more complex the analysis becomes. Therefore, there is a greater need for outside consultants and help.
An effective three-step process toward reaching a separation of finances before a divorce
Each of these assumes there is an active consultation with the proper professionals.
1. There should be a marital balance sheet that sets forth all of the assets and debts
That marital balance sheet should list all assets and debts. It should separately have a list of all of the debts the marital estate pays for on a monthly or other periodic basis. For example, mortgage payment is usually a monthly payment. However, a car insurance payment may only be twice per year depending on how the payment structure is set up.
2. A statement that sets forth each spouse's gross and net incomes
This does not have to be a formal income and expense declaration but there should be complete transparency between the spouses regarding income that is available to pay for expenses.
If the spouses communicated well during the marriage regarding finances, nothing on this document should be a surprise. However, husbands and wives sometimes delegate payment of the family's debts to one spouse. In such situations, one spouse may have more information on a particular topic.
The purpose of this document is to understand how the spouses can afford to pay for debts if they intend to physically separate. This can also apply to those situations where the spouses continue to live together and wish to separate their finances even though they continue to cohabitate.
3. A written agreement that memorializes how, on a temporary basis, the spouses intend to separate the finances
I cannot emphasize the word "temporary" enough. This is not a divorce agreement. This is not a marital settlement agreement. This is nothing more than each spouse coming to an understanding about how they will temporarily pay for debts, separate accounts as well as take related action as they embark on a divorce in California.
This is another reason why experienced family law representation is important. An experienced lawyer can draft such agreements with the understanding they are only temporary until the spouses figure out what they intend to do during the divorce case.
Separation of finances by unilateral action before a divorce
In our experience, this is more common than separation of finances by agreement before getting a divorce.
We believe most spouses do not take the time to come to agreements on such issues. The most common actions we see are the following:
One spouse may even "cut off" the other spouse from any financial help. To some degree, all of these moves are foolish. We certainly understand those situations where spouses cannot agree because one spouse is being unreasonable and the reasonable spouse has to take action. What we do not understand is those situations where neither of the spouses even try to reach an agreement.
To give you the bottom line on such unilateral action, be careful that you do not breach your fiduciary duties to your spouse or, even if it does not rise to that level, take action that will cause a Family Court to hold a negative opinion of you.
Before you take action, take the time to consult with an experienced family law attorney who can tell you if the action you propose to take is wise or requires, at a minimum, an attempt to reach an agreement with your spouse.
Unilateral action, especially those born out of anger, may do the following:
- Make you feel better in the short term,
- Promote a feeling you got the upper hand on your spouse, and/or
- Make you believe you taught your spouse a lesson.
However, it may make you feel a lot worse in the midterm to long-term if you find out that action actually violated the law or that action cost you significantly more money than you thought you saved.
Emotion laced, financial decisions are almost without exception foolish decisions. There is no emotion in numbers. There are only dollars and cents and ensuring what you do is reasonable and complies with the law.
A trial separation is a physical separation between a husband and a wife that gives each of them time and space to determine if they wish to remain separated or resume their marriage. Trial separation is similar to a testing period for spouses with marital problems that are significant enough to cause the separation but not so significant that one or both of them want to proceed with getting a divorce in California.
Trial separation is a good idea for some spouses and a bad one for others.
We believe trial separation to be a good idea in the following circumstances:
We believe trial separation to be a bad idea in the following situations:
We expand on each of the above in an article we wrote about exactly this topic. Please check out our article titled trial separation before divorce
The road to parenting time agreements before getting a divorce starts with communication and ends with a consensus consistent with the child or children's best interest.
If parents can communicate amicably and with their children as the focus, they can resolve just about any child custody and parenting time related issue.
We touched on parenting time agreements earlier in this guide. Let us dive into parenting guidelines.
Our strong recommendation is a careful review of the Orange County Parenting Guidelines unless the proper county for your case has its own extensive parenting guidelines.
Right now, the following Southern California counties have their own guidelines of which we are aware: Orange County, Los Angeles, San Diego and Kern County.
We provide you with a link to the guidelines at the end of this section.
Guidelines are not the law. They are not legal authority of any kind. However, they are a wonderful guide to help you better understand different types of parenting schedules for regular parenting time, holiday schedules, etc. If your county does not have extensive guidelines, those of Orange County will still be helpful to you.
If parents communicate on that peaceful and child focused level and take the time to go through their county's parenting guidelines (or those of Orange County), they should find a parenting schedule that makes sense for the children. What happens after they find it? There are several options available and the first one makes the most sense for most parents:
- An experienced family law attorney can draft a parenting agreement consistent with the schedule the parents want to exercise. This may be a family law mediator or either spouse's family law attorney.
- If the spouses have not gotten to the point of hiring attorneys, they can certainly draft agreements that memorialize the parenting schedule. The more complex the schedule, the more likely they may need help with the drafting.
- The parents may have a verbal agreement on the schedule. This is the worst of the three options. Verbal agreements are the foundation for misunderstandings and miscommunication. Put it in writing so there is no room for either.
Here are a few tips for the negotiation and drafting process
1. The more complicated you make the parenting time agreement, the more likely it will fail.
While it is not a guarantee of failure, complex, parenting time agreements have too many moving parts, hard on the children and are difficult to remember and track for the parents. Keep it simple and you will have a more predictable process as you move toward a divorce in California.
2. Remain flexible with each other when flexibility is necessary due to work, school or other commitments.
Flexibility should be reasonable. Reasonable means neither party should carry a great burden during this process. If one parent simply cannot follow a schedule, overburdening the other parent is unreasonable. If one parent just needs occasional changes that are a minimal burden on the other parent, the other parent should accommodate those changes.
3. Do not assume the children will have a highly difficult time with the transition.
Although some children, depending on their personalities or special needs, may take longer to just, children for the most part adapt to change quickly. I see too many parents cause significant stress on themselves and the other by trying to create what they believe to be the "perfect schedule." They do this thinking they are minimizing any potential disruption in the children's lives. Many times, they are just making it worse.
A separation will cause disruption in your life and therefore it will cause a disruption in your children's lives as you proceed toward a divorce in California. While you are going through the divorce, there will be even more disruption. Do not drive yourself crazy trying to come up with the perfect arrangement. There is no such thing. The less stress you place on each other as parents, the less stress you will pass on to your children during this entire process.
Here are the links to the different parenting guidelines in certain Southern California counties:
- Orange County Parenting Guidelines
- Los Angeles County Parenting Guidelines
- San Diego County Parenting Guidelines
- Kern County Parenting Guidelines
Everybody sane wants an uncontested divorce. Only a true sociopath or martyr would desire a contested divorce.
Contested divorces do happen because such sociopaths do exist. However, most of the time a contested divorce happens because a husband and wife are simply unable to agree on the facts or the application of the law.
Sometimes, it is just a lack of thinking and letting emotions take over. Goodness knows we have had plenty of evidentiary hearings and trials because our client's spouse refused to embrace reality.
What allows a California divorce to be uncontested?
The two-word answer is, "the spouses." The husband and wife have complete control. They mutually dictate a divorce's direction. Lawyers do not do that. Judges do not do that. Neither the law nor any family court system does that.
When you hear people tell their nightmare divorce stories, it is not because anything a judge, a lawyer or the system did, despite what they tell you. It was a husband and wife who could not get on the same page and both of them took their chances with the court. Anytime you take your chances with the court, somebody is going to come out unhappy, angry and/or disappointed.
The two most important things I want you to take away if you want an uncontested divorce in California are these:
1. Knowledge is your most important sword and shield
Take the time to educate yourself about divorce in California and specifically about California divorce laws and the California divorce process. The more you (a) read reputable content on the subject, the more (b) you communicate with your lawyer about questions you have and concerns you want to address. That translates to a more informed you from start to finish. What is the best thing about being this informed? Even in the face of adversity or conflict of any kind, you make better choices.
2. Turn your heart off and your brain on
This is not about feelings, emotions, or your ideas of fairness. This is about the application of the facts to the law.
Uncontested divorces do not always start out that way
An uncontested divorce in California may start as a contested or even high conflict divorce. That is common. Sometimes husbands and wives have to work themselves toward a point of compromise.
Uncontested divorces result in stipulations and orders while the divorce in California is pending. They ultimately result in a stipulated final judgment on some or all of the issues in that divorce. These documents are signed agreements that then become a court order.
One of the worst things you can do in an uncontested divorce in California is not pay attention to the details. You have heard the expression the devil is in the detail. The devil is synonymous with mistakes. If you carelessly review documents before you sign them, you will miss details and you may enter into agreements you did not intend and did not understand. You cannot blame other people for that. It is up to you to read what you sign and ensure you ask questions to which you receive clear answers before you sign anything.
Do you want to read more about uncontested divorces in California? Check out our article about uncontested divorces.
A contested divorce in California refers to a divorce where the parties are unable to resolve one or more issues. A contested divorce in California does not automatically mean the case must proceed to trial. As we wrote above, a case may start contested but finish uncontested.
Throughout our website, we provide significant information regarding the various aspects of a contested divorce. These include but are not limited to the formal discovery process, requests for order and trial. The conclusion to any contested divorce in California is a trial date. A trial may be on every issue in the divorce, one issue only or everything in between.
Any California divorce that involves minor children necessarily involves child custody and parenting time (called visitation) issues. The parents may resolve the issues. That leads to an agreement that becomes a child custody order. The parents may not amicably resolve anything and the issues may proceed to a court hearing. That also results in a court order.
Most divorces in California follow a two-step process regarding child custody. Divorces with complex or high-conflict, child custody issues usually have more than two steps.
The typical two-step process includes a temporary order and the final order
Parents may agree to temporary orders while the divorce is pending or parents may proceed to a request for order hearing where the judge makes temporary orders.
These temporary orders typically remain in effect throughout the divorce and until the final orders. The final orders result in one of three ways.
- The parents resolve the issues as part of the overall divorce judgment, resolving every divorce issue,
- The parents only resolve custody and parenting time and that becomes a final order that is separated from other issues because the parents have ongoing disputes on other issues, or
- The issue of child custody and parenting time proceeds to a trial and the judge makes the final orders after the judge hears each parent's position.
In high conflict cases, you may see the additional following steps:
- The appointment of a court investigator,
- The appointment of a private child custody evaluator,
- The appointment of a lawyer for the child or children, and/or
- The involvement of social services in cases of abuse or serious neglect.
Why one or more of these additional steps? Family Courts want information concerning the children's best interest. The more complex the issues are, the more likely the Family Court will need help from outside sources to gather that information.
What options does the court have regarding the custody orders it makes during the divorce?
Whether by agreement or through a contested hearing, most court orders on child custody and parenting time during a divorce fall into one of these categories:
- Joint legal custody or sole legal custody,
- Joint physical custody or sole physical custody,
- A parenting time schedule that sets forth regular parenting time, holiday and special day parenting time and vacation time, and
- Additional provisions regarding transportation of the children, the manner of exchanges, provisions that control each parent's words and actions around the children that may affect the children's best interest, etc.
Our family law firm wrote a comprehensive and highly helpful guide on California child custody laws. Every parent who is going through or who may go through a child custody case in this State should read it.
Child support orders can range from the most simple to the highly complex.
Urban legend is parenting time percentage is the issue that makes child support complex. That is not correct. While parents do litigate parenting time within the context of child custody cases, California's guideline child support formula only requires the parents to plug in the percentage, whatever that parenting time percentage is.
It does not matter whether the parents have an ongoing dispute. One parent can always modify the child support if his or her parenting time increases in the future.
Income is the major issue that complicates child support
If you and the other parent are wage earners with W-2 income and no passive income, self-employment income, trust income or other forms of income, child support becomes plug and play. The more complex the income structure, the more likely the parents will dispute the income amounts.
The court makes temporary orders and final orders during a divorce in California. Final orders are a bit of an oxymoron because child support is never truly final. If there is a material change in circumstances or if the child support amount to which the parents agreed is below guideline, child support is modifiable. These are the two most common reasons to modify child support.
Please read our comprehensive guide on California child support laws to learn more about this subject.
Many husbands and wives think the formula to calculate child support and spousal support is the same at the end of the divorce. They think it is as simple as a computer program. Unfortunately, too many family law lawyers are lazy about spousal support calculation and that laziness over the years has caused some of the urban legend that surrounds spousal support.
There are two aspects of spousal support during a divorce in California. The first is temporary spousal support. The second is spousal support at the judgment phase.
It is true that temporary spousal support is often a computer program, similar to child support in simple cases. For example, if both spouses are W-2 employees and the paying spouse's income is at or about the same as it was when the spouses separated, the computer program should provide an accurate, temporary support number.
- What about a situation where one spouse is self-employed?
- What about a situation where a spouse's income is significantly higher after separation compared to what it was during the last 12 months of the marriage before separation?
- What happens if there is domestic violence by the spouse who seeks spousal support against the victimized spouse?
These situations and others mean a spousal support calculation, even on a temporary basis, cannot always be as cut and dry as plugging numbers into a program and getting a spousal support number.
Spousal support at the judgment phase involves an evaluation of Family Code 4320
The marital standard of living is only one of the factors with section 4320. If the spousal support issue proceeds to trial, the family law judge must conduct this analysis. If the spouses settle spousal support, there is usually language within the judgment that sets forth these factors.
During a divorce in California, spousal support can be and often is a contested issue. To learn more about it, we encourage you to read our very popular and comprehensive guide titled California Alimony Laws.
Every divorce involves division of property. Property, by California law, is either real property or personal property. Real property is exactly what you think it is - real estate of any kind. Personal property is everything that is not real property. In other words, it is everything else.
Division of property involves a three-step process:
- Is the property community property?
- Is the property the separate property of one spouse?
- Is the property a combination of community and separate property?
Community property characterization
California Family Code 760 defines community property as follows:
"Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property."
I wish it were that simple. Community property rules do become more complicated than that. To determine community property, Family Courts usually look at the following:
That however only deals with acquisition of property. Improvements to property, paying down debt on a property (such as the principal on a mortgage) and even changes in title or other ownership may cause a property to become community, sometimes in part and sometimes in its entirety.
Separate property characterization
California Family Code 770 defines separate property as follows:
"(a) Separate property of a married person includes all of the following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in this section.
(b) A married person may, without the consent of the person's spouse, convey the person's separate property."
Once again, it is not that simple and, once again, we look at the following:
- Date of acquisition,
- The source of acquisition, and
- Whether any separate property funds contributed to the property at issue.
Fortunately, we wrote a terrific guide on division of property in a California divorce. Please check it out to learn more about how community property and separate property laws work during a divorce in California.
You should also read our guide on the penalty for hiding assets in divorce.
Dividing debt for a divorce is similar to dividing property (assets). The process includes:
- Characterization of the debt as community debt, one spouse's separate debt or a combination, and
- If it is a community debt or a combination, the way the spouses intend to divide the debt.
The key to debt division is full disclosure. Similar to property, spouses who do not disclose debt of which they are aware or should be aware play a dangerous game. The court has the power to assign a debt to a non-disclosing spouse if that spouse failed to make proper disclosures and especially if that spouse knowingly failed to do so.
Debt division can become complex
This is especially true when there are tax debts for which one spouse may claim to be an innocent spouse. Other examples are debts of which the spouses are not aware, such as liabilities one or both of them incurred during the marriage but which has not matured to an actual obligation or debt. A common example is civil liability of which during the marriage and before the divorce judgment, the spouses may not have any knowledge. This liability occurs after the divorce in the form of a lawsuit.
Like any other California divorce issue, you should seek the advice of a knowledge and experienced divorce attorney, like those at our California family law firm.
Did this guide help you better understand how to get a divorce in California?
You are just getting started on your path to important information that will help you ask smart questions and make smart choices.
It is time to have an in-depth meeting with an experienced and skilled divorce attorney and bring your questions with you to that meeting. If Southern California is your case's venue, then contact us for an affordable strategy session.
We will discuss divorce in California in more detail and your specific situation. We will provide you with the legal advice for your upcoming or pending divorce and help you navigate the divorce process from start to finish.