William H. Paynter is a sole practitioner in Sonoma,
California. His main areas of practice include family law, divorce
law, post-divorce matters, child custody, child support issues,
personal injury and civil litigation. He received his BA in History
from Michigan State University and his JD from the Michigan State
University School of Law.
HOW DOES THE DIVORCE PROCESS START?
One spouse, called the Petitioner, files a document called a Petition
for Dissolution of Marriage (along with several other documents)
with the Clerk of the Court in his or her county of residence. The
other spouse, called the Respondent is then served with the Petition
and the other documents. If the Respondent does not agree with what
the Petitioner is requesting in the Petition, the Respondent must
file a Response no later than 20 days (30 days if served out of
state) after he or she was served with the documents.
If the Respondent fails to file a written
Response within the time allowed, the Petitioner can apply to the
court for a default. The Petitioner must then file an Application
for Entry of Default with the court and mail a copy to the Respondent.
The Respondent then has another opportunity to file a Response.
The Respondent has ten days from the date of the Application for
Entry of Default to file a Response. If the Respondent still does
not file a Response within ten days from the date the Application
for Entry of Default is filed and mailed, then the Petitioner can
proceed with the dissolution.
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WHAT IS THE DIFFERENCE BETWEEN A CONTESTED
DIVORCE AND AN UNCONTESTED DIVORCE?
If a divorce is contested, it means that the Petitioner and Respondent
do not agree on some aspect of the case and the Respondent has filed
a Response to contest it. Some examples of issues that must be resolved
prior to the court granting a divorce are child custody, child support,
spousal maintenance, division of property and debts. If an agreement
cannot be reached by both parties, the case will go to a trial before
a judge who will render a decision on the unresolved issues. In
California there are no juries in a divorce case.
An uncontested divorce is one that the parties
mutually agree on all the issues and there are no disputes.
• •
WHEN CAN I FILE FOR A DIVORCE IN CALIFORNIA?
Either you or your spouse must live in the state of California for
at least 90 days prior to filing for a dissolution of marriage in
California.
• •
WHAT IS CONCILIATION SERVICES?
Conciliation Services is a separate division of the Court made up
of trained family counselors and mediators that are available to
people going through a divorce or other family disputes to assist
in resolving those disputes without the necessity of a trial. Conciliation
services is offered free to the public.
• •
WHAT DOES "JOINT" LEGAL
CUSTODY OF THE CHILD MEAN?
Joint legal custody means that both parties share legal custody
of the child or children and that neither party's legal custody
rights are superior to the other. Joint Custody may be granted if
a judge feels that the parties can communicate with one another
well enough to make joint decisions regarding the child's well-being.
If the Judge feels that the parties cannot
communicate with one another, then one spouse may be granted sole
legal custody giving that spouse the authority to make all the major
decisions regarding the child and the other spouse may have little
if anything to say about it.
Primary physical custody means that one parent
has the child physically placed with them and the right to make
all the routine daily decisions with regard to the child's health
and general welfare.
• •
HOW DOES THE COURT DECIDE WHO WILL
GET CUSTODY OF THE CHILDREN?
Perhaps the most difficult issue in a divorce involves the custody
of a child or children. If the Petitioner and Respondent cannot
agree on custody arrangements, a judge will be forced to make the
decision. The court will always decide the issue of custody looking
to the "best interests" of the child as the legal and
factual standard.
The judge will consider a variety of factors
including but not limited to, the wishes of the child and the parents,
the mental and physical health of all individuals involved, domestic
violence, drug or alcohol abuse, as well as the current living arrangements
of the parents and the child.
• •
HOW MUCH CHILD SUPPORT WILL I PAY
OR RECEIVE?
Child support is determined by a set standard and formula adopted
by the California Supreme Court. The amount of support is determined
by adding together the monthly gross income for each party. From
that number a basic support amount is determined from the guidelines.
The basic support amount is then affected by such things as medical
insurance for the child, child care, educational costs, the age
of the child, and support of other children.
• •
WHEN IS A PARTY ENTITLED TO SPOUSAL
MAINTENANCE (ALSO KNOWN AS ALIMONY)?
In California, the law acknowledges that marriages are essentially
partnerships and even though one party may not have worked outside
the home, the law presumes that this spouse still contributed equally
to the marriage in other ways. The other ways a spouse may have
contributed to the marriage, include but are not limited to, child
rearing, managing the household, and providing physical and emotional
support to the wager earner.
The party seeking spousal maintenance is not
automatically entitled to it. The party seeking an award of spousal
maintenance must be able to prove a need for it. The court may award
spousal maintenance to the party seeking it if they can show, as
an example:
- That they lack sufficient property to provide
for themselves;
- That they are unable to support themselves through
employment;
- They are the custodian of a child whose age or
condition is such that they should not be required to work outside
the home; or
- That party contributed to the educational opportunities
of the other spouse.
The court will also consider the number of
years the parties were married and whether the party requesting
spousal maintenance is of an age that there is little chance of
gaining adequate employment. The other party must also have the
ability to pay the spousal maintenance. If these circumstances exist,
the court will determine not only the amount of maintenance to be
paid but also for how long it is to be paid.
In determining the amount and duration of
the support, the court will consider all relevant factors, including
but not limited to:
- The standard of living established during the
marriage;
- The duration of the marriage;
- The age, employment history, earning ability,
and the physical and emotional health of the spouse seeking maintenance;
- The ability of the spouse from whom maintenance
is sought to meet his or her needs while also meeting the needs
of the spouse seeking the maintenance award;
- The comparative financial resources of the spouses,
including their comparative earning abilities;
- The contributions, if any, of the spouse seeking
maintenance to the earning ability of the other spouse.
- The extent, if any, to which the spouse seeking
maintenance has reduced their own income or career opportunities
for the benefit of the other spouse;
- The financial resources of the party seeking
maintenance, including marital property apportioned to such party,
and such party's ability to meet their needs independently.
• •
HOW WILL OUR PROPERTY BE DIVIDED?
California is a community property state and the law of community
property guides the courts when dividing marital assets. All property
acquired during marriage is presumed to be community property. The
courts thus consider all property acquired during marriage to be
community in nature and subject to 50/50 division. However, certain
property is considered to be separate property, not subject to division,
meaning it belongs solely to one spouse. Examples of separate property
include, property owned prior to the marriage, or property one spouse
received as a gift or through a will or inheritance.
Some property that was once separate may become
community property if it is considered to be CO-mingled or gifted
to the community. CO-mingling can occur, for example, by depositing
separate property funds into the spouses' joint bank account. Gifting
could occur by using separate property funds to improve a community
residence.
When the marriage is dissolved the court attempts
to make an equitable, though not necessarily equal, division of
the community assets and awarding each spouse their separate assets.
• •
COULD MY SPOUSE BE ORDERED TO PAY
MY LEGAL EXPENSES?
The law does provide for an award of attorneys' fees and costs in
some circumstances. The award of attorneys' fees and costs is a
discretionary award left up to the trial judge hearing the case.
After considering both parties' financial
resources, the court may order one spouse to pay a reasonable amount
to the other spouse for court costs and expenses, including attorneys'
fees. In reaching a decision on whether to award fees and expenses,
the court will base its decision on the relative ability of each
party to pay their own fees and expenses. The general purpose behind
an award of fees and costs is to allow the party with the lessor
financial means an equal opportunity to present their case. It may
also be used as a sanction depending on the positions taken by a
party throughout the litigation.
• •
HOW WILL I PAY FOR MY DIVORCE?
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