WHAT SHOULD I KNOW ABOUT DIVORCE AND CUSTODY?

1. What are the grounds for divorce in California?
2. Can I get a legal separation or an annulment instead of a dissolution?
3. What is a summary dissolution?
4. How do I file for dissolution?
5. What happens after I file?
6. How will our property be divided?
7. What is spousal support? Is it the same as alimony?
8. Who will pay to support our children?
9. What will happen to our children when we separate?
10. What happens if the other parent and I cannot agree on custody and visitation?
11. What choices does the judge have in granting custody or visitation rights?
12. Does the judge consider what our children want?
13. If a custody plan doesn't work, can it be changed?
14. How do I enforce a custody or visitation order?
15. Should I be represented by a lawyer?
16. What if I don't have enough money to pay for legal advice?

1. What are the grounds for divorce in California?

You or your spouse must have lived in California for six months and in your county for three months before filing a petition to dissolve your marriage. In California, there are two grounds for "divorce," now called "dissolution":

• Irreconcilable Differences. Your marriage will not work and counseling will not help save the marriage.
• Incurable Insanity (rarely used). Medical proof that one spouse was insane when the petition was filed and remains incurably insane, is required.

2. Can I get a legal separation or an annulment instead of a dissolution?

Yes, you can get a legal separation or nullity without having lived in California for six months or your county for three months before filing.

• Legal Separation. You may have religious, insurance, tax or other reasons for wanting a legal separation rather than a dissolution. If you obtain a legal separation, you will remain married to the other party, but the court can divide your property and make orders relating to child custody, visitation, child support, spousal support, and restraining orders.
• Nullity. If you are granted a nullity it means your marriage never existed. You may be able to get a nullity if you married when you were a minor without the consent of your parents or guardian, or if certain types of "fraud" or deceit were involved.

3. What is a summary dissolution?

If you qualify for a summary dissolution, you do not go to court and you may not be represented by an attorney. You may qualify for a summary dissolution if all of the following conditions exist at the time you file:

• You have been married five (5) years or less.
• You have no children from the relationship.
• Neither party owns a home or other real estate.
• The value of all community property is less than $25,000.
• There are no unpaid obligations in excess of $4000.
• The parties waive spousal support.

Both spouses must agree to all the terms of a summary dissolution, and either party can cancel it for any reason before the dissolution is final. A summary dissolution requires a filing fee and you must have been living in California for six months and the county in which you file for three months. For more information, you may be able to get a booklet called Summary Dissolution Information from the clerk of your county's superior court.

4. How do I file for dissolution?

To obtain the proper forms, you can purchase a dissolution form packet for a minimal fee from the clerk of your county's superior court. You or your lawyer must prepare the forms called "Petition" and "Summons." You start your action by filing the Petition and Summons with the clerk of the superior court of the county where you or your spouse lives. You must pay a fee to file these papers unless you have a very low income and qualify for a fee waiver.

A copy of the Petition, the Summons, and a blank "Response" must be served on your spouse by someone other than yourself who is an adult (over the age of 18). The Summons is a paper that gives notice to your spouse that you are filing for a dissolution and that he or she has 30 days in which to file the Response. The Summons also contains restraining orders that prohibit you and your spouse from removing your minor children from the state without the other spouse's approval, disposing of property without the other spouse's or court's approval, and canceling or changing insurance policies.

In the Response, your spouse indicates the areas of disagreement that need to be resolved by the court. For example, your spouse might object to your request for spousal support or sole custody of your children.

5. What happens after I file?

There are several steps that may occur after you file.

• Temporary Orders: You or your spouse may ask for a hearing so a judge can decide any temporary child custody, visitation, and support or "restraining order" disputes. These hearings are called "Order to Show Cause" hearings.
• Agreement: You, your spouse and your lawyers will work on permanently resolving the issues raised in the dissolution. If you reach an agreement, you may not be required to appear at court and a "judgment" can be entered consistent with your agreement. You will be required to submit an "affidavit" or sworn statement with the court saying that the marriage is ending because of irreconcilable differences.
• Trial: If you are unable to reach an agreement on the issues, you and your spouse will go to court for a trial at which a judge will make the decisions.
• Default: If your spouse does not file a Response, you may request a "default" and proceed to a default hearing to obtain a judgment. You will be asking the court to enter a judgment consistent with what you requested in the petition.
• Judgment: A judgment ending your marriage can be entered six (6) months from the day your spouse is served with the summons and petition. The court does not automatically end your marriage when the six months has passed. You cannot legally remarry until you obtain a judgment even if the six months has passed. If you want to remarry or have some other reason for wanting to be single at the end of six months, a judge can dissolve your marriage even though some property or other issues are not yet settled.
• Not all of the steps will be necessary in every case. For example, you may reach an agreement and proceed to a judgment without the necessity of temporary orders.

6. How will our property be divided?

The laws of California recognize that both spouses make valuable contributions to a marriage. Most property will be labeled either "community property" or "separate property."

• Community Property. All property, real or personal, in or out of the state that either you or your spouse acquired through labor or skill during the marriage is community property. You and your spouse may have more community property than you realize. For example, you may have an interest in pension and profit-sharing benefits, stock options, and other retirement benefits. Each spouse owns one-half of all community property. This is true even if only one spouse worked outside of the home during the marriage and even if this property is in only one spouse's name.

  With few exceptions, debts incurred during the marriage are community obligations. This includes credit card bills, even if the card is in your name only. Student loans are an exception and are considered separate property debts. Community property possessions and community property debts are divided equally unless you and your spouse agree to an unequal division. You should be aware that if your spouse agrees to pay a community debt and then fails to pay, you may have to pay the creditor. Division of possessions and debts can be complicated. You may each want a lawyer's advice before entering into an agreement.

  If you and your spouse can't agree on the division of debts and possessions, a judge will make the decision. Ownership of each of your belongings might not be split between you and your spouse; instead, a judge might give each of you items of equal value. For example, if your spouse gets the furniture and appliances, you might get the family car or something else of equal value.

• Separate Property. Separate property is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during marriage; and gifts to you alone, not you and your spouse. Separate property is not divided during dissolution.
  
  

  Problems with identifying separate property occur when separate property has been mixed with community property. You may be entitled to receive your separate property back even if it has been mixed. There are complex tracing requirements where property has been mixed, and you may want to seek the advice of a lawyer.

  Debts incurred before getting married or incurred after separating from your spouse are your separate property debts. You will be required to file proof that you listed all of your "community" and "separate" property on a document called a "Preliminary Declaration of Disclosure" and that you served this document on your spouse. Determining the character of property can be complicated. Your lawyer can help make sure your property is properly listed as "community" or "separate."

7. What is spousal support? Is it the same as alimony?

"Spousal support" is the name for alimony in California. Spousal support is money that one spouse pays to help support the other after a dissolution has been filed. The party receiving spousal support will pay federal and state income taxes on the amount received and the party who makes the payments will be entitled to take a tax deduction for the amounts paid. In order to determine the amount and length of time you are entitled to receive spousal support, the judge will consider many factors. The factors considered include the standard of living during the marriage, the length of the marriage, and the age, health, earning capacity and job history of each party.

Perhaps neither of you needs spousal support when your marriage is dissolved. Since circumstances can change (such as an illness or the loss of employment), you may ask the judge to "reserve jurisdiction" to order spousal support in the future. This will leave the door open so you can come back and ask for spousal support at a later time. Under certain circumstances, you or your spouse may go back to court and ask the judge to increase or lower the amount.

Courts are able to order a "wage assignment," directing a spouse's employer to pay spousal support directly to the other spouse.

8. Who will pay to support our children?

You and the other parent are both responsible for supporting your children until each child reaches the age of 18. This duty may extend beyond age 18 if certain conditions are met. The amount of support to be paid from one parent to the other is controlled by guidelines that have been established in California. There are computer programs available to assist you in determining which parent will pay child support, and how much. Significant factors include the amount of time each parent spends caring for the children and the amount of income each parent receives.

The party receiving child support does not report child support payments as income for federal and state tax purposes and the party paying child support is not entitled to take a deduction for child support payments. You may request a "Wage Assignment Order." This is an order that requires the employer of the wage earner to pay support directly to the parent entitled to receive support.

9. What will happen to our children when we separate?

You can determine what happens. The best solution for the children is for the parents to agree on who will take care of them. If you and the other parent agree on a parenting plan, you and/or your lawyer should attach a written copy of your plan to the dissolution papers. Your parenting plan can become a court order. In most cases, a judge will approve a custody plan that both parents want.

10. What happens if the other parent and I cannot agree on custody or visitation?

If you and the other parent are unable to agree on custody or visitation, a judge will make the decision. There are several steps to finalizing a custody plan. Custody and visitation can be decided on a temporary basis if there are immediate problems. For example, school may be starting and you cannot agree on where the children will attend school, or one parent intends to move and wants to take the children.
Before the court makes a temporary or permanent order, the parents will meet with a "court mediator." The court mediator helps parents work out a plan that will be good for you and your children.

In some counties, the court mediator will make recommendations to the judge; in other counties, if the parents do not reach an agreement, the mediator does not make recommendations. Depending upon the nature of the custody dispute, the court may order a psychological evaluation of the family. The judge may also appoint an attorney to represent the children. You and the other parent may be charged all or part of the cost of the appointed attorney If there is a custody dispute, you may want to be represented by an attorney.

11. What choices does the judge have in granting custody or visitation rights?

The judge must give custody to one or both of the parents, or, in some cases, another adult based on the best interests of the child or children. Factors considered include the children's health, safety, and welfare as well as any history of abuse by one parent. If custody is awarded to a non-parent, the judge would have to believe that giving custody to either parent would be detrimental or harmful to the children.

• Joint Legal Custody. The parents share the right and responsibility to make important decisions about their children's health, education and welfare. These decisions might include such things as where the children will go to school or whether they should have braces on their teeth.
• Sole Legal Custody. One parent shall have the right to make decisions relating to the health, education and welfare of the children.
• Joint Physical Custody. The children spend time living with each parent on a regular basis. It does not mean that the children must spend equal amounts of time with each parent.
• Sole Physical Custody. The child shall reside with one parent and the other parent will have visitation.

There are many variations to custody orders. For example, a judge who orders joint legal and joint physical custody may name one parent as the "primary caretaker" and one home as the "primary residence." The judge may order sole physical custody to one parent and supervised or no visitation to the other where it appears a parent may present a threat to the child's welfare or safety. Stepparents and grandparents in certain circumstances may be given visitation.

12. Does the judge consider what our children want?

The judge must consider what the child wants if the child is "of sufficient age and capacity to reason." The judge is not required to follow the child's wishes. It may be difficult to determine the child's true wishes if the child has been coached by one or both of the parents. Most often, children don't want to cause hurt to either parent. The court mediator or other counselor may meet with the child to help convey the child's real desires.

13. If a custody plan doesn't work, can it be changed?

Yes, once a temporary or permanent order has been established, if circumstances change, you can return to the court and request a change in the parenting plan. The same procedures discussed in question #10 will apply to a request to change an already established parenting plan. If you and the other parent are able to reach an agreement, you can submit your agreement to the judge and request an order. Judges often approve changes even without a hearing if you both request them.

14. How do I enforce a custody or visitation order?

There are several alternatives to enforcing a court order. If you have a certified copy of your court order, law enforcement may help you. In addition, if you are unable to locate your child, you may seek assistance from the district attorney in your county. You may also bring an action asking the court to find the party who has violated the order in contempt of court. If the other parent won't obey the order, and the above suggestions don't seem to work for you, you may want to consult an attorney.

15. Should I be represented by a lawyer?

Property settlements and custody disputes can be very complicated. A lawyer can, for example, help you decide which of your belongings are community property and which are separate. A lawyer can tell you how the court may divide your property and help you put your property settlement agreement into writing. A lawyer can tell you about your rights and duties concerning your children.

A lawyer can advise you if an unexpected problem comes up and can also attempt to protect you if your spouse files for bankruptcy before you receive the money due to you in a property settlement. In addition, a lawyer can advise you on how much money, if any, you should pay or receive for spousal or child support.

Lawyers who handle dissolution and custody cases are called family law attorneys. Some are "certified specialists" in family law. This means that they have met standards for certification by the State Bar of California. The standards include meeting certain experience requirements and passing an exam. Not all lawyers who have experience and expertise in family law, however, have sought certification.

To find a lawyer, you could call a State Bar-certified lawyer referral service in your area. Look in the Yellow Pages of your telephone directory at the beginning of the "Attorneys" listings under "Attorney Referral Service, " or call your local bar association. For an online list of certified lawyer referral services, visit the State Bar's web site at www.calbar.org.

State Bar-certified lawyer referral services seek to find the right lawyer for your particular problem. Most of these services offer half-hour consultations for a modest fee (usually $25 to $50) to help determine the most appropriate lawyer to handle your situation. Lawyer referral service fees vary.

Don't forget to ask whether there is a fee for the referral or initial consultation. And if you decide to hire a lawyer, make sure you understand what you will be paying for, how much it will cost and when you will be expected to pay your bill.

For more information, see the State Bar pamphlet How Can I Find and Hire the Right Lawyer? To find out more about ordering a complimentary copy of this pamphlet and other State Bar consumer education pamphlets, call 415-538-2280. Or visit the State Bar's web site-www.calbar.org-where you'll find the bar's consumer pamphlets, as well as information on ordering them. The pamphlets also may be ordered in bulk.

16. What if I don't have enough money to pay for legal advice?

You may belong to a "legal insurance" plan that covers the kind of services you need. If your income is very low, you may qualify for free or low-cost legal help through volunteer service organizations. Or, check the white pages of your telephone directory for a legal services program such as a legal aid society located in your county. Also, the courts in most counties have established on-site clinics where you may be able to obtain forms and guidance on how to proceed with your action. Your local bar association may be able to provide you with information specific to the county in which you live.

The purpose of this pamphlet is to provide general information on the law, which is subject to change. If you have a specific legal problem, you may want to consult a lawyer.

The State Bar of California
Office of Media & Information Services
180 Howard Street
San Francisco, CA 94105-1639
415-538-2000
415-538-2280 (for pamphlets)
www.calbar.ca.gov