Family Law

Under California law, all divorces are “no fault” divorces, which means that the spouse seeking dissolution of the marriageis not required to prove that the other spouse was at fault or did anything wrong. Generally, the spouse who files for divorce does so because of “irreconcilable differences” that have caused an irrevocable breakdown of the marriage.“Irreconcilable differences” simply means that the two spouses just couldn’t get along.

The spouse who files for divorce is referred to as the “Petitioner”, while the other is called the “Respondent”.

To file for divorce in California, there are certain residence requirements that must be fulfilled. First, one of the spouses must have lived in California continuously for the past six months. Second, the Petitioner must have lived in the county where he or she plans to file the divorce for the past three months.

In California, a typical divorce requires the following steps:

• The Petitioner files a Petition with the appropriate court, and then personally serves the Petition on the Respondent.
• After being personally served, the Respondent then has 30 days to file a Response to the Petition.
• Typically, one of the parties to the divorce requests temporary court orders, such as child custody and support, by requesting an Order to Show Cause hearing.
• The Petitioner and Respondent then engage in discovery (i.e., the required exchange of information and documents that are relevant to the case).
• After discovery is completed, the Petitioner and Respondent and their respective attorneys discuss settlement of the case.
• If the Petitioner and Respondent can reach a satisfactory agreement, one of the attorneys will prepare a Marital Settlement Agreement.
• If the parties are unable to reach a satisfactory agreement, a trial then takes place.
• After the parties sign a Marital Settlement Agreement or after the trial has concluded, either the Petitioner’s or Respondent’s attorney prepares a Judgment of Dissolution of Marriage.

In California, there are joint custody laws that encourage courts to award joint legal custody to both parents if it is in the best interest of the child. This means that both parents have a right to make decisions concerning their children, including education, medical treatment and religious beliefs and training.

The court also has the power to award “physical custody” to one or both parents. Physical custody means the location at which the child actually lives. It is common for the children to spend most of their time with one parent.

The parent who does not have primary physical custody is usually granted secondary physical custody or visitation rights.

It is common for the non-custodial parent to have specified periods of time consisting of alternating weekends, one evening per night and one-half of the children’s school vacations.

Under California law, in order to calculate the minimum amount of child support to be paid by a particular parent, the judge first adds up the total net monthly incomes of both parents. The judge then calculates the percentage of the total net monthly income that is being earned by the non-custodial parent. That percentage is then multiplied by the applicable level of welfare payments for the number of children in the household.

The result of the above calculation is the minimum child support. It should be noted, however, that in the substantial majority of cases, the court orders child support above the minimum level (pursuant to local child support guidelines).  You will need to petition the court for a child support order if both parents cannot work out support issues informally.

As discussed above,where one spouse is unemployed or earning significantly less than the other spouse, courts often award spousal support during the Order to Show Cause hearing on a temporary basis.

The Superior Courts of Los Angeles and Orange Counties have enacted a spousal support guideline for use in determining temporary spousal support. This guideline mandates that the husband’s spousal support be set at 40% of his net monthly income, reduced by one-half of the wife’s net monthly income.

During the trial for the divorce, the California Family Code sets forth a long list of factors for the judge to consider in determining the amount and duration of spousal support. This list includes, among other things, both the length of the marriage and the parties’ prior standard of living. The judge may also consider:

• The extent to which the spouse requesting support contributed to the attainment of an education or professional license by the other spouse;
• The presence of young children in the home of the spouse requesting support; and
• The employment opportunities available to the spouse requesting support.

It does not matter if one spouse had an affair in a no fault divorce. California law does not provide that the spouse who had an affair pays more spousal or child support or receives less property as a result of the affair.