Filing for divorce in California is often the first step in an unpleasant legal process. Even when both parties want the divorce and agree on how it should proceed, it is an emotional time fraught with legal peril. Anyone seeking a divorce in San Jose should consult with San Jose divorce lawyers to make the process go as smoothly as possible
California Divorce Requirements
California laws require at least one party in a divorce to have been a resident of the state for at least six months and to have lived in the county where the divorce is filed for at least three months.
California does not have separation requirements; you do not have to live apart from your spouse before you file for divorce
Types of Divorce and Separation in California.
There are several options for ending a marriage in California. San Jose divorce lawyers will help determine which type of divorce is optimal for their clients.
- Uncontested divorce. Both sides agree to all aspects of the divorce, and a judge doesn’t need to make any decisions. An uncontested divorce doesn’t require a trial and is usually quite inexpensive.
- Summary dissolution. This variation on an uncontested divorce can only happen when the marriage existed for less than five years, the spouses do not have children and both parties have minimal assets. It is even simpler than an uncontested divorce.
- Mediated divorce. If any aspect of the divorce is disputed, the parties can attempt to resolve these disputes through nonbinding mediation. If the negotiation is successful, the divorce can proceed under the agreed-upon terms.
- Collaborative divorce. Collaborative divorce attorneys work with each party to decide on the terms of the divorce. If the parties cannot agree, the attorneys cannot participate in future divorce litigation.
- Litigated divorce. When all else fails, the divorce is litigated by San Jose divorce lawyers at trial in front of a judge who makes final decisions about contested points. This is an adversarial process that can take years and often costs tens of thousands of dollars.
- Legal separation. A legal separation has much the same effect as a divorce, except the parties remain legally married. Separation may be the right course of action if the parties want to try to reconcile or need more time to determine how to deal with divorce issues.
California allows for no-fault divorces, which means the party who files for divorce does not have to provide the court with a reason for ending the marriage.
Child Custody, Support and Visitation in California
When divorce includes children, the divorce decree must include child custody, child support and visitation provisions. These can be agreed to by both parents as long as they are in the best interest of the children.
However, if the parents can’t agree or the agreement doesn’t protect the children, the court will step in and make decisions, keeping the children’s best interests in mind. Custody can be determined in the follow ways:
- Legal custody. A parent with legal custody has the authority to make decisions about the child’s welfare, such as where they will go to school or what medical care they receive. The judge can assign legal custody to one parent or grant joint legal custody.
- Physical custody. Physical custody refers to where the child lives. Often, one parent may receive primary physical custody with significant visitation rights for the other.
- Both parents are equal. Before taking any other factors into account, the judge starts by assuming both parents have equal rights regarding custody. That assumption is then modified by factors like the parents’ respective history with their children and the overall welfare of the children.
Property Division in California
California is a community property state. Any property or debt the spouses acquired during the marriage is divided evenly (with a few exceptions, such as gifts or inheritances).
However, this doesn’t mean that all marital property must be divided equally. If both parties agree to a settlement, the court will generally not overrule that decision.
California has few concrete laws regarding alimony (called spousal support). Typically, judges have a lot of leeway and can assign long- or short-term alimony based on whatever factors are relevant.
Finalizing Your Divorce
In California, a divorce can’t be finalized until six months after the divorce was filed with the court. Once that time has passed, the divorce is finalized as soon as a judge issues a divorce decree or approves a divorce agreement.