Divorce
This page is about the dissolution of a marriage, commonly termed "divorce," and incidental issues. Here you will find information about the grounds for divorce and how issues related to divorce, such as spousal and child support are determined in Ventura County and elsewhere in California.
A divorce involves termination of marriage status, and resolution of the rights and duties that arise from the marriage. Upon commencement of the dissolution of marriage action, you may seek temporary orders, which are effective pending settlement, trial, or further order of the court that issued the temporary orders. Such orders may include payment of child support, spousal support, use of property, payment of debts, and child custody/visitation orders.
There are only two grounds for divorce in California. The first is "incurable insanity," which is rarely cited. The second "irreconcilable differences," is virtually always declared in both the Petition and the Response. The marriage must have broken down and there must be no possible means to eliminate, correct, or resolve the issues that are driving the marriage apart. Fault does not play a role in California, which is a no-fault State, and desertion or adultery does not have to be proved.
The issues in a divorce may be contentious, in which case the parties will in all likelihood present arguments to the court at various stages of the case, including at trial, or various separate trials. Common areas of dispute are custody and visitation, which relate to who spends time with the children, and under what circumstances and conditions. The issue of child and spousal support is also often disputed. Issues of property division may also be extremely complex: this is especially true of stock options, property with both community and separate property value, among other issues.
Most marital cases are settled in part by contested trial, and in part by settlement. A case may be resolved entirely by negotiation and settlement. In this case the parties may submit a stipulated Judgment or marital settlement agreement to the court for its approval. The parties need not appear in court, and the emotional and financial expense of litigation is avoided. An attorney's role here is important, both is structuring the agreement, and preparing the terms of the agreement.
Frequently Asked Questions
WHAT THINGS SHOULD I CONSIDER IN ANTICIPATION OF GOING THROUGH A DIVORCE OR LEGAL SEPARATION?
Photocopy all relevant financial documents that you can obtain, and store them off site with a trusted friend or relative. Do not store them in the trunk of you car, where they can easily be found and removed by you spouse.
There may be both personal and strategic reasons not to tip off your spouse that documents are being reviewed for a possible dissolution proceeding. So, make copies of documents that you find in the residence and return the originals to their original location as soon as possible so that your spouse won't notice they're missing. It is often advisable to make the photocopies when you are sure your spouse is away for an extended time, such as during a workday.
It is advisable to gather as many relevant financial documents as possible while they are still available and before they have been removed or destroyed by your spouse. This will significantly reduce the cost of the divorce litigation for you if they do not have to be recovered later. It will also permit us to get a true picture of all community assets and debts as soon as possible.
At a minimum, try to photocopy financial documents generated for the past 3 years, including all bank statements, cancelled checks, tax returns and financial statements, W-2's, K-1's, loan applications, credit card statements, pay stubs, pension statements, stock option statements, deeds to real property, closing statements, loan documents, stock certificates and brokerage statements, property appraisals, automobile, life and health insurance policies, and any other financial documents that you think could be relevant to any financial issues in your case.
You should make a preliminary list of your monthly income and expenses.
Also, take photographs of the contents of your residence as soon as possible in the event your spouse later removes items. Itemize on a sheet of paper the household items by room.
If your spouse has served you with court papers, write down the date that you were served with the court papers. Determine immediately the date of any upcoming court hearing. Contact a legal professional as soon as possible. Bring all of the papers that you were served with to the meeting.
If you file for court orders, you will not be able to get any orders for child support or spousal support until the first Order to Show Cause hearing, which will not take place until about a month after you file you Petition for Dissolution or Legal Separation. As a general rule, you cannot get financial orders at an Ex Parte or emergency hearing. Therefore, make sure that you consider and make provisions for supporting yourself for at least a month. Otherwise, if your spouse cuts you off from financial resources, which often happens, you may be in a very difficult and vulnerable position.
Immediately upon filing the Petition for Dissolution or Legal Separation, Standard Family Law Restraining Orders, otherwise known as ATRO's, automatically go into effect against the Petitioner. They become effective immediately against the Respondent as soon as the other spouse served with the Petition. If you want avoid acting in contempt of these ATRO'S, you need to consider acting before you file your Petition or are served with the Petition as the Respondent.
These Standard Family Law Restraining Orders provide as follows:
"Starting immediately, you and your spouse are restrained from
1. Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
2. Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage including life, health, automobile, and disability held for the benefit of the parties and their minor child or children; and
3. Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.
You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, nothing in the restraining orders shall preclude you from using community property to pay reasonable attorney fees in order to retain legal counsel in the action.
Very Important - if you have separated from your spouse before one of you has filed for Dissolution of Marriage or Legal Separation, AVOID agreeing to and placing into effect a temporary parenting plan arrangement regarding the children unless you will be able to live with this arrangement after the divorce papers have been filed. Once you begin a parenting plan that seems to be working, it becomes the "status quo." It is very difficult to convince a mediator or judge to change the status quo, especially if it is working or appears to be working and is not detrimental to the minor children.
HOW LONG MUST I LIVE IN CALIFORNIA BEFORE FILING A DIVORCE ACTION OR AN ACTION FOR LEGAL SEPARATION?
To file an action for divorce, also known as dissolution of marriage, a person must have resided in the State of California for 6 months and in the County where the action is filed for 3 months prior to filing the Petition in Court.
This is true of either the Petitioner or the Respondent - either one can meet the test and allow a filing - so, if my spouse meets the residency requirement, I can file, even though I do not meet it myself.
CAN I BE THROWN OUT OF MY OWN RESIDENCE?
The Court can and usually will order you to move out of your residence if your spouse convinces the court that you have been violent towards your spouse, or threatened your spouse. You could be given "ex-parte" notice to be in court the next day because your spouse is seeking an order that you move out and stay out. You can be ordered to leave immediately, and not return, even if your spouse is not on title or not on the lease agreement! Once you are ordered to leave, it is not likely that you will be allowed to return.
CAN WE STILL FILE A JOINT TAX RETURN IF WE HAVE FILED FOR DIVORCE?
If you have not received a Judgment dissolving your marriage before the end of the year, you may file an individual tax return (married, filing separately), or a joint tax return with your spouse. You should consult with your accountant as to the advantages of these alternatives. You may obtain from your local IRS Office special information booklets regarding: "Tax Information for Divorced Individuals".
