Divorce lawyers

Historically, people could file for fault-based divorce in California based on traditional fault grounds, including adultery, domestic abuse, and abandonment. However, California no longer allows spouses to file for a fault-based divorce. Instead, all divorces in California are now no-fault divorces based on irreconcilable differences under Cal. Fam. Code § 2311.[3] This means that you do not have to allege that your spouse engaged in any type of marital misconduct to get a divorce. It also means that the way in which your property will be divided will also not be affected by either your behavior or your spouse’s behavior during your marriage. However, certain types of misconduct such as drug and alcohol abuse or domestic violence can affect the visitation and child custody rights of a spouse in a dissolution of marriage with children.

While some states are equitable distribution states, California is a community property state. Under Cal. Fam. Code § 760, all property acquired during a marriage by either spouse is considered to be community property and will be subject to division in a divorce.[4] This includes both assets and debts acquired by either spouse. Both spouses have equal interests in community property, and it must be divided equally between them.

By contrast, property acquired by either spouse before the marriage is that spouse’s separate property, so it will not be included in the marital estate or divided in a divorce. However, separate property that has become commingled with the couple’s community property might lose its separate characterization and be subject to division. For example, if one spouse had $100,000 in an account at the time that he or she married, that $100,000 would be his or her separate property. However, if that spouse deposited the money into a joint account with his or her spouse after getting married for both of their use, it would lose its separate nature because of being commingled with the couple’s community property.

The division of community property requires you to first characterize all of the assets and debts as either community or separate property. Once that has been completed, the community property will then need to be valued. Finally, the couple will need to determine how the property and debts should be divided. If they can’t agree, the court will determine how to divide it for them.

Other Related Issues in Divorce Cases

In addition to ending the legal marital status of a couple, judges can issue multiple related orders in divorce cases.

Either spouse can ask for spousal support in a divorce. A request for spousal support will not be automatically granted, however. Instead, judges will consider a number of factors as outlined in Cal. Fam. Code § 4320 to determine whether spousal support is warranted.[5] Some of these factors include the following:

• The earnings capacity of each spouse
• The ability of the requesting spouse to get a job and enjoy a similar standard of living to what he or she previously enjoyed
• The length of the marriage
• The age of the spouses
• Any documented evidence of domestic violence
• The assets and debts of each party
• Whether one spouse gave up his or her career to support the other spouse’s career development and to provide domestic duties
• Whether the supporting spouse has the ability to pay spousal support
• Tax consequences faced by both spouses
• Hardships faced by both spouses
• Criminal convictions for spousal abuse
• Other factors

A divorce attorney at the Fontes Law Group can help you understand whether spousal support might be at issue in your case and how much you might have to pay or what you might expect to receive.

Under Cal. Fam. Code § 2030, a spouse can ask the court to order the other spouse to pay his or her attorney’s fees and legal costs.[6] If the court finds that there is a disparity in the ability of the spouses to access an attorney because of differences in income and assets, the court can order the higher-earning spouse to pay the costs for both his or her own attorney and that of the other spouse.

Some couples choose to pursue a legal separation instead of a divorce. In a legal separation, the community property will be divided, and if you share children, the court will issue child custody and child support orders. However, unlike a divorce, a legal separation will not end your marriage. This means that if you are legally separated, you will not be free to marry someone else.

There are several reasons why some people choose legal separation over divorce, including the following:

• Religious beliefs against divorce
• Allowing one spouse to remain on the other spouse’s health insurance
• Ability to continue filing joint tax returns for more tax benefits
• Retaining future eligibility for Social Security or military pension spousal benefits
• Wanting to wait to determine whether the spouses might eventually be able to iron out their differences

A legal separation can be a good solution if you and your spouse are in any of the above-listed scenarios. If you do eventually decide to divorce, it can be easier if you are already legally separated. However, both you and your spouse must agree to the legal separation. If you or your spouse object to legal separation, you will then have to pursue a divorce instead.

References
[1] Cal. Fam. Code § 2320.
[2] Cal. Fam. Code § 2339(a).
[3] Cal. Fam. Code § 2311.
[4] Cal. Fam. Code § 760.
[5] Cal. Fam. Code § 4320.
[6] Cal. Fam. Code § 2030.
[7] Cal. Fam. Code § 3011.
[8] Cal. Fam. Code §§ 4050 – 4076.