Divorce and Family Law

A divorce (also called a "dissolution of marriage") permanently ends the legal status of your marriage. California is called a "no-fault" divorce jurisdiction, which means that either spouse can file for divorce at any time for any reason.

To get a divorce in California, there are certain residency requirements. First, you or your spouse must have lived in the state for at least six months. Second, you must have lived in the county where you file for dissolution for at least three months.

A divorce may be a simple procedure where the marriage did not last very long, the spouses have no children, and the spouses have very few assets to divide. On the other hand, long term marriages between spouses with minor children and significant assets may be more complex and will require resolving several issues, including property division, child custody and visitation, child support, and spousal support.

A legal separation should not be confused with a "trial separation," as it is not designed to give couples a time-out from their marital problems. A legal separation may involve the same issues as a divorce, including property division, child custody and visitation, child support, and spousal support.

There are several significant differences between a legal separation and a divorce. For example, both spouses must agree to a legal separation. If both spouses do not agree, a legal separation automatically becomes a divorce. In addition, there is no waiting period. In the state of California, it takes six months to become divorced. A legal separation, on the other hand, can happen immediately. Also, there is no residency requirement for a legal separation. Unlike a divorce, a spouse does not have to live in the state for six months before filing the action. Finally, a legal separation will not allow either spouse to remarry.

An annulment is a procedure to declare a marriage legally void. A marriage may be invalid for several reasons, including:

• at the time of the marriage, one person was not yet 18;
• at the time of the marriage, one person was already married to someone else;
• the marriage is incestuous;
• one person committed fraud in inducing the other to marry him or her.

When you separate or divorce, a court may decide who will have "custody" of your children and how they will be taken care of. The court may also decide on visitation, which means how each parent will spend time with the children. There are two kinds of "custody" orders.

First, legal custody (who makes important decisions for your child, such as health care, education, and welfare) can be either joint, where both parents share the right to make important decisions for the child, or sole, where only one parent has the responsibility to make such decisions. Second, physical custody (who the child lives with) can be joint, where the child lives with both parents, or sole or primary, where the child lives with one parent most of the time and periodically visits the other parent.

Many parents are able to agree on custody and visitation, and courts will generally accept their agreement. If the parents cannot agree, the court will decide these issues for them.

Regardless of the custodial status of the parents, however, a parent will usually have the right to visitation with the child. In making a visitation order between the parents in California, a court will typically grant the other parent (the non-custodial parent) reasonable visitation rights, unless it is shown that visitation would be "detrimental" to the best interest of the child.

Courts place a great deal of importance on "frequent and continuing contact" with both parents. As a result, court will generally not completely deny a parent's visitation privileges unless it finds that the parent would be "detrimental" to the child's best interest.

Courts generally have broad discretion in defining a parent's "reasonable visitation" rights and establishing a visitation schedule. In all cases, child visitation orders must conform to the policy of protecting the child's health, safety and welfare. Beyond this general framework, courts may consider such practical matters as the child's age, maturity and special needs, the parent's physical proximity to the child's primary residence and, where appropriate, the child's own preference.

A court may award one parent to pay the other parent a support payment every month for the benefit of the child. All courts use a standardized "guideline" formula for determine out how much, if any, child support should be paid. Child support payments are usually made until the child turns 18 (or 19 if he/she is still in school). Parents may, however, agree to support a child longer.

At any time, either spouse may go back to court to request a modification of a child support order where circumstances have significantly changed (i.e., job loss, re-marriage, etc.)

The Department of Child Support Services can assist a parent in enforcing and collecting court-ordered child support.

In a divorce or separation, the court may order one spouse to pay the other spousal support (also known as alimony) each month. Unlike child support, there is no strict formula that courts use to determine whether and how much spousal support should be ordered. Instead, courts will use their discretion to in weighing a number of factors to determine spousal support, including the length of the marriage, the age and health of the spouses, the spouses' independent sources of income, expenses, as well as other factors.

Like child support, either spouse can request a modification of a support order where circumstances warrant.

California is a community property state. This means that, in most cases, all property and income that either spouse acquires during the course of the marriage is considered community property. Each spouse has a 50% interest in all community property.

Separate property is property that belongs solely to one spouse and not to the other. Separate property is all property that one spouse acquires before marriage and after separation, as well as property that one spouse acquires during the marriage by gift or inheritance.

These are general rules subject to more subtle applications in each case. Unfortunately, in many circumstances, couples must litigate over whether certain property should be considered community or separate.

Divorce mediation can be more economical and less toxic than a traditional litigation-oriented divorce. Mediation is a voluntary and private settlement process emphasizing informed decisions and mutually acceptable agreements. Mediation involves practical, non-adversarial problem-solving.

In mediation, our attorneys act as an impartial mediator to help the spouses identify and clarify the marital issues in dispute, consider options for settlement, and reach fair agreements. We do not represent either spouse, but instead we provide objective and reasonable settlement guidance.

The attorneys at Widger & Widger, P.C. are:

• Trained in mediation and conflict resolution techniques
• Highly experienced in divorce, family and business disputes
• Impartial and ethical

Do you need protection from actual or threatened physical or sexual abuse by your partner or spouse? We can assist you in obtaining a restraining order, which is a court order to your abuser to not contact you, move out of your house, and to not come within a certain distance of you, your home, and your work. If you need immediate assistance, please call 911.

If the facts of your case meet the requisite legal standard, we can typically obtain a "temporary" restraining order within the next business day of your contact with the firm. That order will last until a scheduled court date in the near future, at which time the court will evaluate the evidence more closely, and will provide the abuser with the chance to defend himself or herself. The judge will then decide to make the order "permanent" or will cancel the order. A "permanent" order can last up to five years.

Although prenuptial agreements tend to have negative connotations, these agreements are commonly used by people who wish to have their assets and finances characterized by their own choosing, instead of the default California community property laws.

These agreements may be particularly appropriate for persons marrying late in life, persons with children from a previous marriage, persons who own a family business or residence, persons whose partners have significant debt, or persons who have other special needs that are not otherwise protected by law.