Ask The Attorney - Topic: Divorce

Introduction:
Divorces are one of the most difficult things to face here in California. When I worked for two judges in the court system the toughest cases always dealt with divorces. Below are common questions we get regarding divorces in California.

Question:
Attorney Cheng: What are the grounds for divorce in California? My wife cheated on me. Jackson – San Francisco

Answer:
Jackson, to file for a divorce either you or your spouse must have lived in California for six months and in your specific county for three months before filing a petition to dissolve your marriage. In California, there are only two grounds for divorce: 1) Irreconcilable differences (Your marriage will not work) and 2) Incurable insanity (Medical proof that one spouse was insane when the petition was filed – and remains incurably insane – is required). Cheating and being a bad parent are not specific categories for divorce but would fall under the irreconcilable differences category.

Question:
Attorney Cheng: I have not lived in California for six months. Is there an alternative to divorce? Cindy – San Marino

Answer: Yes, you can still get a legal separation without having lived in California for six months or your county for three months prior to filing either for legal separation. You may have religious, insurance, tax or other reasons for wanting a legal separation rather than 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 and spousal support, and if necessary, issue a restraining order. Many couples that have not lived in California for six months or in the county for three months, will file for legal separation and then when either party has lived in California for six months file for dissolution.

Question: Attorney Cheng: I made a big mistake and want to make sure no one knows about my marriage. Is there a way to do this? Peter – Vancouver

Answer:
Dear Peter, you need to check the laws of your country for doing this. However, in California, you can get a nullity of marriage. A nullity of marriage means your marriage never existed. You may beable to get a nullity if you are marriage when you were a minor without the consent of your parents orguardian, or if certain types of fraud or deceit were involved when you got married.

Question:
Attorney Cheng: Is there a cheap and simpler way to get divorce? Sara – Walnut

Answer:
Dear Sara, in California there is a simple process called Summary Dissolution. You will have file less paperwork and will not have to appear in court. You may be eligible for such a process if you andyour spouse have agreed in writing to a division of assets and debts and if the following conditions exist: 1) You have been married for less than five years; 2) You have no children; 3) Neither of you own a home or other real estate; 4) The value of all property you own together is less than $25,000.00; 5) Your combined debt does not exceed $5000.00; 6) Both parties waive spousal support. Note that both parties must agree to all the terms of the summary dissolution, and either party can cancel it for any reason before the dissolution is final.

Question:
Attorney Cheng: I am worried about the divorce process, what happens to our property after I file for divorce? Christy – Irvine

Answer:
Dear Christy, CA law recognizes that both spouses make valuable contributions to the 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 duringmarriage is generally community property. For example, pensions, stock options and retirement benefitsearned during marriage are generally considered community property. This is true even if only one spouse worked outside the home during the marriage and even if this property is in only one spouse’s name. Separate Property: This is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separate with your separate earnings; inheritances that were received either before or during marriage; and gifts to you alone, noyou and your spouse. Separate property is not divided during dissolution.

Question:
Dear Attorney Cheng: I need to divorce my husband because he has gambled away all our money. I can no longer support this anymore and must take our children. The debt is around $200,000.00. What will happen when I file for divorce? Ms. Huang – San Gabriel

Answer:
Dear Ms. Huang: the general rule is that debts incurred during the marriage are community obligations. This includes credit card bills, even if the card is in his name only. Student loans are an exception and are generally considered separate property debts. Community property debts are divided equally unless you and your spouse agree to an unequal division. However, you should be aware that if your spouse agrees to pay a community debt and then fails to pay, you may still have to pay the creditor. If you cannot agree on the division of debts, the judge will do it for you.

Question:
Dear Attorney Cheng: What happens if I cannot agree with my wife to the custody of my children? What choices does the judge have? Samuel – Escondido

Answer:
Samuel, the judge may give custody to one or both parents, or to another adult based on the best interests of the child. The best interests of the child is the paramount rule that every judge must follow when allocating time. The four main types of custody are: 1) Joint Legal Custody – The parents share the right and responsibility to make important decisions about their children’s health, education, and welfare. 2) Sole Legal Custody – One parent has the exclusive right to make decisions related to the health, education and welfare of the children. 3) Joint Physical custody – The children spend time living with each parent on a regular basis. However, this does not mean that the children must spend equal amounts of time with each parent. 4) Sole Physical custody – The child lives with one parent and the other parent has visitation.

Categories: Divorce