There are three main ways to end a marriage in the state of California: divorce, legal separation, and annulment. It is not necessary for both spouses to agree to end the marriage; you can divorce your spouse even if he or she refuses to participate in the process (this is not true for legal separation, but if your spouse refuses to participate, you can easily amend your petition and request a divorce instead).
No-Fault Divorce in California
California is a “no-fault” divorce state. This means the spouse requesting the divorce does not need to show that the other spouse did something wrong, and can simply state that the parties have “irreconcilable differences.” This also means that absent any abuse or domestic violence, courts are not interested in evidence that your ex lied, cheated, or otherwise broke your marriage vows. Because there is no punishment for cheating or being a “bad” marital partner in the state of California (short of perpetrating domestic violence), a wronged spouse is not entitled to receive a larger share of the marital assets, more child custody or parenting time, more spousal support or child support, or any other form of compensation for the emotional distress that typically accompanies divorce.
At MacKay & Martin, LLP, we realize that most marriages, like people, are flawed. If the “perfect marriage” exists, it is a rare one. Regardless of the circumstances that led to your divorce, our legal team handles each matter with compassion and without judgment, instead focusing on the legally relevant facts and persuading the court to rule in our favor.
If you have been cheated or emotionally wronged, we will treat you and your case with compassion and understanding, and help you move past the anger and resentment so that you can participate in the divorce process with a realistic—and oftentimes more optimistic—plan for the future.
Residential Requirements for Divorce in California
In order to file a petition for dissolution of marriage (divorce) in California, at least one of the divorcing spouses must be a resident of California for at least 6 months, and a resident of the county where the petition is filed for at least 3 months.
Keep in mind that the residential requirements are only for the initial filing of the proceeding. If you have already filed or completed a divorce or child custody matter in another state, and you are now seeking to modify the judgment or child support orders, you will have to file your request in that state. If you are seeking to have your entire case transferred to California, again, you will have to file your request in the state that currently has jurisdiction (the state making the transfer to California).
Conversely, if you now live in another state and are seeking to modify a judgment or order made in California, or requesting to move your case from California to your new state of residence, you will have to file your request in California, in the same county that processed your case.
Other Divorce Issues Our Legal Team Handles
If you are divorcing in California, your matter will likely involve some combination of the issues described below. Our legal team is expertly qualified to handle all issues involved in divorce and will achieve your goals with precision and care.
California is a community property state, which means the law presumes that all property acquired during the marriage is owned equally by both spouses. Upon divorce, a couple’s assets are divided to ensure that each spouse receives one-half of the community estate.
In theory, it seems simple enough to add up the value of a couple’s community estate and then split the number in half. In practice, however, property division is a complicated and detailed process.
If you are going through a divorce in the Los Angeles area, you can trust the expert attorneys of MacKay & Martin, LLP to protect your property interests before, during, and after divorce.
There are two types of child custody: legal custody (link to Child Custody page – Legal Custody section) and physical custody. (link to Child Custody page – Physical Custody section.) Legal custody refers to a parent’s right to make important decisions regarding the health, safety, and welfare of the child. Physical custody refers to who the child lives with. Both types of custody can be shared by the parents jointly (joint custody), or granted to one parent individually (sole custody). Moreover, the court may order any combination of joint custody and sole custody. For example, the court may order joint legal custody with sole physical custody to one parent, or vice versa.
If you are going through a divorce or breakup with children in California, you will need to obtain child custody and visitation orders. There are two ways to get a child custody and visitation order signed by the judge: (1) the parents can reach an agreement and submit it to the court without a hearing, which the judge will almost always approve and sign into a court order; or (2) in absence of an agreement, the parties must litigate the issue in court and let the judge make the final decision.
If your child custody matter is contested, you need an experienced family law trial attorney to persuasively litigate your position in court. The attorneys of MacKay & Martin, LLP, are highly effective litigators who can accomplish that objective. But even if you and the other parent agree on every detail of your divorce and child custody arrangement, you will need an attorney to navigate the legal process and draft an effective marital settlement agreement that protects your current and future interests. If you engage our firm, our legal experts will prepare a legally binding, detailed agreement that protects your interests while solidifying the terms of your agreement.
California has a strong public policy in favor of adequate support, and both parents are equally responsible for providing financially for his or her children. The California Family Code has established guiding principles for courts issuing child support, stating that a parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life. Another guiding principle is that children should share in the standard of living of both parents, and thus child support payment may be ordered to balance the standard of living of both households.
California has a statewide uniform “Guideline” for calculating child support according to a complex formula largely based on each parent’s income and custodial timeshare with the child. The Guideline figure is automatically presumed to be correct, and the court is only authorized to order child support payments above or below Guideline in very limited situations. (Link to Child Support page – “Hardship Deductions” section.) The Guideline calculation generally depends on:
- Each parent’s annual income or earnings
- The number of children the parents have together
- The amount of time the children spend with each parent (timeshare)
- The actual tax filing status of each parent (single, head of household, etc.)
- Child support paid for children of other relationships
- Health insurance expenses and other healthcare costs not covered by insurance
- Mandatory union dues and mandatory retirement contributions
- Childcare costs
If you are involved in a family law matter involving child support in Los Angeles County, it is highly recommended that you consult a family law attorney familiar with the factors affecting child support. The legal team of MacKay & Martin, LLP has the knowledge and experience necessary to negotiate or litigate a fair and reasonable child support outcome given your particular circumstances.
Spousal Support (Alimony) in California
In California, alimony is referred to as “spousal support.” When a couple divorces in California, the court may order the higher income earner (nowadays, this can be either the husband or the wife) to pay spousal support to the other spouse. When spousal support is ordered while the divorce is pending, it is referred to as “temporary” or “pendente lite” spousal support. When spousal support is ordered in the divorce decree, it is referred to as “permanent” spousal support. “Permanent” support does not mean the spouse is entitled to receive spousal support for life; it simply means that it is a final judgment for spousal support, usually ordered for a set period of time (often set for half the length of the marriage, unless the court deems the marriage “long-term,” in which case the court will reserve jurisdiction over the issue indefinitely).
In determining temporary spousal support payments, the court is authorized to use a computer program using the same factors for calculating child support. Link to Child Support page – section on “Factors for Determining Child Support.) If you are going through a divorce with children, the computer program will calculate both child support and spousal support at the same time.
In determining permanent spousal support, however, California law prohibits the use of computer programs, and requires the court to carefully review each of the following factors:
- The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
- The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
- The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
- The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
- The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
- The needs of each party based on the standard of living established during the marriage.
- The obligations and assets, including the separate property, of each party.
- The duration of the marriage.
- The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
- The age and health of the parties.
- All documented evidence of any history of domestic violence, as defined in Family Code section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of:
- A plea of nolo contendere.
- Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.
- Any history of violence against the supporting party by the supported party.
- Issuance of a domestic violence restraining order after hearing.
- A finding by a court during the pendency of a divorce, separation, child custody, or other family law proceeding, that the spouse has committed domestic violence.
- The immediate and specific tax consequences to each party.
- The balance of the hardships to each party.
- The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration, as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
- The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award.
- Any other factors the court determines are just and equitable.
If you are unable to settle or resolve the issue of spousal support, your attorney must present detailed evidence regarding the above factors at trial. The family law team of MacKay & Martin, LLP successfully litigates several dozen spousal support matters each year and is thus well-informed of current and changing spousal support laws in California. Contact our office today to consult with our legal team regarding your case.
Engage with a Legal Team You Can Trust
Whether you are divorcing or seeking to modify an existing divorce judgment, it is highly recommended that you engage with an experienced family law attorney to protect your family and your assets. The legal team of MacKay & Martin, LLP is qualified to handle family law issues of every type and will work to settle your case early and often, thus limiting the cost of litigation. If the settlement is impossible or undesirable, our family law attorneys are skilled trial litigators who will persuasively argue your position in court. Start protecting your family, and your assets, by contacting our firm now.