Dissolution of Marriage, Legal Separation, and Nullity
The Court can grant a Judgment of Dissolution, Legal Separation, or Nullity.
A Judgment of Dissolution of Marriage dissolves the marriage, restoring the parties to the status of a single person, and resolves all custody, property, and support issues.
A Judgment of Legal Separation resolves all custody, property, and support issues, just like a Judgment of Dissolution, but at the end of that process, the parties are still married to each other.
The grounds to obtain a Judgment of Dissolution or Legal Separation are “irreconcilable differences” which has caused a breakdown in the marriage which is beyond repair, or “incurable insanity.” Because California is a “no fault” state, all that is required in a Judgment of Dissolution is for one party to say that the marriage is broken beyond repair, but to obtain a Judgment of Legal Separation, both parties must agree that is what they want.
A Judgment of Nullity has the effect of legally erasing the marriage, as if it never occurred, and is granted when a marriage is “void” (because the marriage was bigamous or incestuous), or “voidable” (because a party lacked capacity, as when it involves a minor; or marriage was entered into because someone mistakenly believed the first spouse was dead; of if a party had an unsound mind; or in cases of fraud, force, or physical incapacity).
Child Custody and Parenting Plans
California has two types of custody: legal and physical, both of which can be held either jointly by both parents, or solely by one parent.
Legal custody refers to the ability of parents to make decisions about the health, education, and welfare of their children, and it is most often thought of as the authority a parent has to sign off or grant authority for medical care, field trips, sports activities, etc., or any other activity where parental consent is required. Legal custody has nothing to do with the amount of time a child spends with a particular parent, but has everything to do with the quality of parental judgment a parent has demonstrated. Joint legal custody is appropriate when both parents exercise good judgment; sole legal custody is appropriate when only one parent is able to exercise good judgment.
Physical custody refers to the amount of time that children generally spend with their parents. Joint physical custody doesn’t necessarily mean that the parents have a 50/50 timeshare, and sole custody doesn’t necessarily mean that one parent has the children 100% of the time. Joint physical custody occurs when both parents have significant periods of physical custody of the children. Joint physical custody must be shared in a way that ensures that the children have “frequent and continuing contact” with both parents. Sole physical custody means that the children reside with one parent, subject to the court’s power to order parenting time with the other parent.
“Parenting plans” are how we now refer to what used to be known as “visitation.” Parenting plans refer to the specific time sharing arrangements of the parents and their children. They usually include at least three specific types of parenting plans: a regular parenting plan, which is effective when children are attending school; a holiday parenting plan, which supersedes the regular plan, and is effective during holidays; and a summer parenting plan, which is in effect during summer recess. These plans can be as specific or generalized as the children (and their parents) need. In mediation and collaborative practice, parenting plans can be developed to address the specific needs of the children, as well as the real world scheduling issues of the parents.
Division of Property
California law generally defines a person’s separate property as that which was obtained prior to marriage, after the parties separated, or by gift or inheritance; everything else that the parties acquired during marriage is defined as community property. The same logic applies to debts acquired by the spouses. Under California law, each spouse is entitled to one half of the community property, regardless of which spouse earns more or less, and each are also responsible for one half of the community debt. There are many exceptions and presumptions in the law for property, but these are the basic rules.
In Court, the judge is obligated to follow the law when dividing assets and debts. However, in mediation the parties are free to come up with other creative solutions which suit their situation better.
The Court may order monthly payments for the support of one spouse by another. Unlike child support, spousal support can be deductible from the payor’s income, and includable in the recipient’s income, for income tax purposes. There are two types of spousal support in California courts: temporary, and long term.
Temporary spousal support may be calculated by the use of a formula, and exists to ensure that a newly separated spouse is not financially disadvantaged by the separation. Temporary support usually continues until a Judgment is obtained
Long term spousal support commences after Judgment, and is calculated by an evaluation by the Court of the statutory factors found in Family Code §4320. In marriages of less than 10 years in duration, spousal support usually lasts half the length of the marriage. In marriages of more than 10 years, it can last considerably longer.
In mediation, clients are free to follow state law or not, and find creative solutions in light of the specific financial circumstances of their particular family.
Child support is an entitlement for children, and is neither deductible from the payor’s income, nor includable in the income of the recipient for tax purposes. In California, all Courts use a formula known as the statewide guideline, and uniformly use support programs to make those calculations.
Child support, as calculated by the Courts, takes into account three major factors: the Father’s net income, the Mother’s net income, and the amount of time the children spend with each of them.
Child support lasts until the child is either 18 (if he/she has graduated from high school), or 19 (if he/she has not graduated from high school), the child’s death, or emancipation.
Marital Agreements are agreements negotiated by spouses while married to each other. While Marital Settlement Agreements describe the agreement reached when spouses separate or divorce, Marital Agreements usually describe and agreement that is drafted when spouses need to contract with each other but stay married. Examples of such agreements are when spouses want to specifically define which of them is in charge of specific assets or business interests; or to change community property rights and responsibilities so that community property is changed (transmuted) into separate property, or from separate property into community property; or to protect family assets from a spouse with a gambling or addiction issue by eliminating their right and ability to, for example, get a second on the family residence. These agreements are sometimes recorded, but not filed with the Court unless/until they are needed.
Mediation is an ideal confidential process in which to negotiate Marital Agreements.
Pre-Marital Agreements, also known as Prenuptial Agreements, are agreements in anticipation of marriage, and which specify financial rights and responsibilities during marriage, and in the event that divorce occurs. Pre-Marital Agreements must comply with the provisions of California law to be enforceable, and are frequently relied on when people anticipate marrying, but have substantial assets that already exist, or when people have children from prior relationships whom they want to preserve assets for, or for protection from liabilities.
Like Marital Agreements, Mediation is an ideal confidential process in which to negotiate Pre-Marital Agreements.
People in intimate relationships sometimes want to live together, but don’t want to get married. Co-Habitation Agreements define the rights and responsibilities of each person with respect to such things as their respective responsibilities for rent or mortgage payments; other household expenses; and who gets what if the relationship breaks down and items of common ownership (such as a home or car) need to be divided or sold.
Like Marital and Pre-Marital Agreements, Mediation is an ideal confidential process in which to negotiate Co-Habitation Agreements.