Pasadena Trial & Litigation Attorneys
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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 (which means that the issues in the marriage cannot be resolved). and 2) Incurable insanity (Divorce on these grounds requires medical proof that one spouse was insane at the time that the divorce was filed. The insane spouse's condition must also be "incurable.") 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, there is an alternative. You can pursue a legal separation without having lived in California for six months or your county for three months prior to filing. A couple who becomes legally separated is still legally married to each other, but the court can still make decisions about propery division, child custody and support, and spousal support (alimony). 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. An annulment of a marriage means that legally-speaking, your marriage never ocurred. You may be able to have your marriage annulled if you were a minor at the time of the marriage and your parents or guardian did not consent to it. If you were married as a result of being deceived or as a victim of some type of fraud, you may also be eligible for annulment.

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 need to appear in court. You can be eligible for a summary dissolution if you and your spouse provide agreement in writing regarding how your property and assetts should be divided. Other necessary requirements include: 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 of you waive the obligation of providing spousal support. In short, in order to obtain a summary dissolution, both you and your spouse must be in complete agreement on the terms of the dissolution; either one of you can cancel the process at any time before the dissolution is finalized.

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, in California, most property will be considered either "community" or "separate." Community property: All property, real or personal, in or out of the state, that either you or your spouse acquired through labor or skill during the marriage is community property. You and your spouse may have more community property than you realize. For example, you may have an interest in pension and profit-sharing benefits, stock options, and other retirement benefits. Each spouse owns one-half of all community property. Even if one spouse worked away from home during the marriage or even if the property is only in one spouse's name, the property will be considered "community."

Separate Property: Any property that was acquired prior to the marriage or after your separation will be considered separate, and therefore only belonging to the person who acquired it. Inheritance--whether received before or during the marriage--and gifts to you alone (and not your spouse) are also considered separate property. These things will not be divided with your spouse during your divorce or 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 full custody to one parent or shared custody between both parents. In some cases, another adult who is not the child's parent may receive custody if this is 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.

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