divorce

Legal Separation v/s Divorce

There are times when the unexpected happens in life. One such period is when a married couple decides to end their relationship because it has not worked out as they both expected. During these times, we have to choose to move forward and leave some precious things behind or stay in the unfavorable or stressful present.

In California, when two spouses decide to withdraw from their marital life, they ultimately have two options: divorce or legal separation. While divorce is the permanent dissolution of your marriage, legal separation means that both spouses live separately but can reunite any time they wish as a married couple. Both are pretty much the same nature, except for the finality and permanence of the decision.

Under divorce, your marriage will be permanently annulled, conferring single status on you and your spouse. Under legal separation, the couple lives apart, but their marriage remains intact. They are both considered ‘married’ in the eyes of the law and cannot enter into another marriage until they are officially separated, i.e. divorced.

So let’s take a look at these two situations and how they differ in the eyes of the law.

 

What is divorce?

The law defines divorce as the permanent termination of a marital bond between two people. Also known as ‘dissolution of marriage’, spouses are considered single and are allowed to remarry if they wish after the divorce is finalized. Spouses have the option to end their marriage by mutual consent, i.e. mediation, or approach the court, which is called litigation.

 

If the parties opt for mediation, they can amicably resolve all disputes that follow a divorce, such as property division, child custody, child support, alimony, etc. If the parties cannot reach an agreement, they can go to court and ask the judge. to place orders for it.

 

What is legal separation?

California is among the states that allow legal separation, the alternative to divorce. Legal separation allows you to divide the assets and debts you have, along with child support and custody rules and parenting plans. Under legal separation, the married couple can obtain an official order from the judge to allow them to live separately and continue their lives independently. Most of the time, a couple opts for legal separation as a preliminary step to their divorce.

 

However, many couples choose legal separation instead of divorce, as they do not want the permanent effects of divorce to take shape in their lives.

 

Requirements for divorce in California

California has residency requirements to file for divorce. It states that at least one spouse must be a resident of the state of California for at least six months before filing for divorce. Additionally, the same spouse must be a resident of the county in which you filed for divorce for at least the last three months.

 

Residency requirements apply to all married couples seeking to file a divorce in California, with one exception. This exception is for same-sex couples. In the event that you or your spouse do not qualify for these residency requirements, you can file for legal separation and then divorce when the required period of time has passed.

 

If same-sex couples were originally married in California but currently reside in another state that does not allow them to dissolve their marriage, they can still file for divorce in California without meeting residency requirements. However, in this case, certain complications may arise regarding the couple’s assets and debts, as well as custody and support issues. It is recommended to speak with a divorce attorney with experience in this regard.

Requirements for Legal Separation in California

If you file for a legal separation in California, you or your spouse must be legal residents of the state. Additionally, you must also provide a reason for choosing to separate from your partner.

 

As a ‘no-fault’ state, California allows couples to simply cite irreconcilable differences as the reason for separation or divorce. You do not need to prove any wrongdoing by the other party to obtain a divorce or legal separation order.

 

When should you choose divorce?

As we mentioned above, legal separation and divorce have many similarities in procedure; However, its purpose differs. With a divorce, your legal status will change to ‘single’ and you may choose to remarry.

 

Divorce allows you to sever all legal ties with your spouse and give up the financial benefits afforded to married couples. Some people choose legal separation when they are unsure about divorce. They do not want to completely dissolve their marriage and give up the benefits associated with it.

 

Whether you want to divorce or legally separate, it is best to consult with an experienced divorce attorney to learn your options and the best possible way to move forward. Hiring an attorney like Dolores López is the best option for you to get expert help during an emotionally turbulent time.

When should you choose legal separation?

Legal separation is a viable option instead of divorce when you want to live apart from your spouse but are unsure about divorce. It is also useful when you want to divide your assets and finances and define your parental rights without opting for divorce.

 

Apart from the reasons mentioned above, you can also request legal separation from your spouse as a preliminary step to divorce or if your religion or personal views prohibit divorce. Some people also choose legal separation because they want to keep certain benefits of marriage:

 

  • Receive tax benefits
  • Receive government benefits; and
  • Keep the joint health insurance plan active.

 

As with divorce, you should hire a divorce attorney who can review the details of your case and present it before a family court judge.

 

Understand your options

Both divorce and legal separation have their own unique nuances, so it is best that you fully understand them before making a decision. Also, remember that regardless of your choice, it doesn’t have to be a bitter court battle; You can separate or divorce your spouse on amicable terms. A divorce lawyer can help you in this regard.

 

If you have further questions or queries or would like to understand the legal processes of probate or divorce, Dolores López is here to help you. He has a deep understanding of California family law and a deep understanding of how the courts operate. Rely on our compassionate and qualified assistance to help you navigate these difficult times.

 

Little Girl Sitting with her parents bed looking serious

How to get custody of a child

As parents, we all want the best for our children and our family. California courts also consider the best interests of the child before granting a custody order.

However, things could get complicated if you find yourself in the middle of a child custody case facing a California court case. Because to the court, your child’s best interest may not be as simple as awarding custody to a specific parent. As a general rule, courts favor equal time sharing between parents. But divorce is a complicated and hotly contested dispute, and the circumstances vary significantly from case to case.

If the courts determine that the other parent is not eligible to obtain custody of the child, they will grant the other parent full custody of the child. If you are seeking full custody of your child in California, you need to know how California law and courts grant custody orders.

What is child custody?

Child custody refers to the care, custody, and maintenance of the child after the parents have divorced. Custody of children may be awarded to both parents jointly or it may be awarded to one parent exclusively. In the latter case, the other parent usually gets visitation rights.

The decision of which parent will get custody depends on several factors that determine the best interests of the child. Suppose the courts find that one parent is incapable of caring for his or her children financially or emotionally. In that case, they will consider the best interests of the child and award custody to the suitable parent.

How is child custody determined in California?

Under California law, either parent can obtain custody of their child or both parents can share custody. The judge will decide on custody and visitation without a custody agreement between both parents. The judge can also issue his verdict only after the parents have met with a mediator from Family Court Services (FCS), based on whose recommendations the judge will decide the matter.

California law recognizes two types of custody orders, which are:

  • Legal custody

  • Legal custody refers to the right and responsibilities of parents to make important decisions for their children. These decisions concern the child’s education, health care, and well-being.

    Legal custody can be divided into Joint Legal Custody or Sole Legal Custody. In the first, both parents share the right and responsibility to make decisions regarding their child. In sole legal custody, only one parent has the right and responsibility to do so.

    Physical custody

Physical custody refers to the parent with whom the children may live. Physical custody can also be divided into Sole Physical Custody and Joint Physical Custody. In sole physical custody, children live with one parent, while the other gets visitation rights to spend time with their child. Under joint physical custody, children live with both parents, although time cannot be divided equally.

Legal Separation v/s Divorce

In California, the judge will decide the best interest of the child based on the following factors:

  • Child’s age;
  • The health of the child;
  • The emotional relationship between the child and the parents;
  • The ability of each parent to care for the child;
  • History of substance abuse or domestic violence by either parent; and
  • The child’s relationship with his community.

How to win custody of a child in California?

The best way to resolve a child custody problem is an amicable agreement between both parents. Once the parents decide on custody and visitation rights, the judge approves the agreement and signs it, making it an enforceable court order.

However, this is not always possible. This is where the court comes in. When parents cannot decide, the court will ask them to attend a mediation session with an FCS mediator. If the mediator is unable to resolve this issue, then the judge will decide the visitation and custody schedule, which will be enforceable.

There are some cases where the court requires a third-party child custody evaluator to evaluate the custody request and recommend an appropriate parenting plan. In this case, parents may be required to pay for evaluation services.

Any parent seeking full custody of the child must present persuasive evidence of his or her ability to care for the child. The courts will investigate whether the child’s best interests align with your custody request. However, for the welfare of the child, courts are inclined to grant joint custody of the child unless the other parent is proven unfit to do so.

The parent seeking to obtain full custody of the child must provide compelling evidence to support his or her case.

Reasons for granting sole or full custody

As mentioned above, courts will only award sole custody if they are convinced beyond a doubt that the other parent is unfit to take responsibility for the child. The judge may award full custody of the child if he or she is satisfied that the other parent:

  • Has committed domestic abuse;
  • Has committed child abuse;
  • Has made false accusations of abuse;
  • Has a substance abuse problem;
  • Emotionally abuses the child; and
  • has never taken care of the child;

How to get child custody as a father?

Family Code 3040 specifically prohibits any child custody order that is biased toward one parent based on his or her sex. This practically means that the court will only consider the best interest of the child in awarding custody and will not form a preference toward one parent because of their sex.

Therefore, it is clear that you, as a parent, can obtain sole custody of your child, depending on the circumstances. Here it is essential that you know the reasons why you can obtain a favorable custody order.

Before granting sole custody to a parent, the judge will investigate that parent’s suitability to care for and support their child. As a father, you can obtain sole custody of your child if the mother:

  • He refuses to share paternity of the child;
  • It belittles the father towards the child;
  • Levels false accusations of abuse; either
  • It alienates children.

Spending quality time with your children is an important part of gaining full custody. You cannot expect to win sole custody if you have not spent time with your children before the divorce. The judge will only consider granting sole custody to the father when the child feels comfortable with the father and it is in his or her best interest to live with the father.

If the mother refuses to co-parent or gives you additional time to spend with the children, you should seek the help of an experienced child custody attorney. Even if your case has begun and you feel that it is not progressing as desired, you should look to retain a proven attorney who can guide you and get your case back on track.

How to obtain custody as a mother?

People have the misconception that courts favor mothers when it comes to child custody. But this is simply not the case. Winning custody of children solely based on the gender of the parents is prohibited under Family Code 3040.

Even for the mother, sole custody will only be granted when the court firmly believes that it is in the best interest of the child to live with the mother. You can get full custody if it is proven that the father:

  • Have a history of domestic abuse or substance abuse;
  • Has a history of emotional abuse towards children;
  • He is under the care of the child; and
  • It is a flight risk.

The list is not exhaustive, but it paints a fair picture of how courts determine the best interests of the child in custody matters.

Steps to Win Child Custody in California

If you are seeking full custody of your child as a parent, you should be aware of the steps involved in the litigation process, which includes:

  • Preparation

The first step is preparation for the case. You and your attorney should strategize after determining whether you want sole or joint custody.

  • archive

You must file a family law case before seeking custody of your children. This could be a divorce, paternity or custody case.

  • Ex parte orders

Ex parte orders are also known as temporary orders. These orders are obtained if the child is at risk. The court will issue a temporary emergency order that will be in effect until the final verdict.

  • Orientation

Some California counties, such as Los Angeles, require both parents to take a brief orientation course before their custody case.

  • Mediation

A court-appointed mediator from Family Court Services (FCS) will meet with the parents to formulate a parenting plan agreed upon by both parties. In this case, the judge will sign the agreement, and it becomes a court order. If the parents do not agree, the mediator provides recommendations to the judge regarding the same. Lawyers for both parties cannot attend the mediation.

  • Audience

After mediation, the parties attend an initial hearing where facts and evidence are presented before the judge to determine the next step. There may be multiple hearings, depending on the circumstances.

  • Conference

Las conferencias son reuniones que tienen lugar entre los padres y el juez. Este es nuevamente un esfuerzo para ayudar a los padres a llegar a un acuerdo amistoso y evitar litigios.

  • Proof

During the trial, both sides present evidence and question witnesses so that the judge can rule. Depending on the complexity of your case, the hearing lasts days or even months. The trial ends when the judge announces his final decision, which is considered the final custody order.

  • Final order

The trial ends when the judge signs the final custody order. It is an enforceable parenting plan that sets out all the details of custody, visitation, and support.

If either party is dissatisfied with the decision, they can appeal the order to a higher court or file a motion to vacate the order.

Tips to Increase Your Chances of Winning Child Custody

As a parent, you must be responsible to your children and respectful to the other parent if you want full custody of the child. Here are some points to keep in mind that will increase your chances of obtaining custody:

  • Make sure you spend time with your children;
  • Be willing to work with the other co-parent;
  • Participate in your children’s education;
  • Make sure your child feels comfortable at home;
  • Exercise your parental rights;
  • Share all medical and other information with the co-parent, regardless of how minor it may seem;
  • Keep all documents and written communications with your spouse;
  • Support the co-parent’s relationship with your child; and
  • Remain calm and composed in the courtroom and mediation sessions.

Consult with a Child Custody Lawyer Today

Things get complicated when parents can’t agree on custody and visitation rights. It is best to have an expert child custody attorney who can help you understand the legal procedure and your rights.

Dolores Lopez is one of the best child custody attorneys in Orange County who can help you obtain child custody and visitation rights. Serving Los Angeles, San Diego and Riverside Counties, she is knowledgeable and highly experienced in handling all family law matters.

Call 714-733-7065 for a free consultation session today.

Judge giving decision on marriage

How can I file for a divorce in California?

How Can I File for a Divorce in California?

Divorce is a very challenging prospect for anyone. Legal challenges here are accompanied by emotional stress and anxiety. Things could get even worse if there are secondary issues such as child custody and support or property division.

However, with the right set of legal guidance and skills, anyone can get through this difficult period and get the result they want.

In the US, filing and obtaining a divorce differs from state to state, although there are some commonalities. In California, divorce is more accurately defined as the dissolution of a marriage.

This blog article will discuss the reasons for obtaining a divorce, the types of divorce, and the procedure for filing for divorce in California. But it is worth mentioning that it never hurts to know more, but it is best to entrust your matter to an experienced divorce lawyer from the beginning.

Now, let’s take a look at the reasons for filing for divorce in the state.

Reasons to file for divorce in California

Before California simplified divorce and became the first state in the country to allow a “no-fault divorce” status, divorce in the US was only possible when the other spouse proved the fault of a specific spouse.

‘No-fault’ divorce basically means that the parties to a divorce do not need to prove any fault of the other to obtain a successful marriage dissolution order. In legal terms, there does not need to be any proof of fault on either party in order to get a divorce.

The California Family Law Act of 1969 made the state the first in the US to grant parties a ‘no-fault divorce’. Soon, all other states followed suit.

The same Law has established two simple reasons for which a divorce can be obtained in California:

  • Irreconcilable differences

Differences that have caused the total breakdown of the marriage; and

  • Permanent Legal Disability

When one of the spouses becomes incapable of making decisions.

Legal Separation v/s Divorce

Types of divorce in California

It is best to know the types of divorce that the state of California allows. It will help you prepare your case and be aware of your legal situation before consulting with a California divorce attorney.

  • no-fault divorce

As discussed above, no-fault divorce basically means that neither spouse has to prove the fault of the other to obtain a divorce. California was the first state to enact this law.

The spouse filing for divorce only needs to prove irreconcilable differences, meaning that the marriage is not working in any way.

  • Contested divorce

Contested divorce is the adversarial form of divorce. This happens when there is a conflict between the spouses and they both disagree on the points of the divorce.

This is a complicated form of divorce where things can turn sour between the parties. When the parties cannot agree on the points of the divorce, it can lead to a full-fledged trial in which the judge has the discretion to decide the matter.

  • divorce by mutual agreement

Exactly the opposite of a contested divorce; An uncontested divorce is when both parties agree on everything. These agreements include child support and custody issues, visitation rights, division of assets, and other issues.

These divorces mostly do not go to trial and are resolved more amicably. Both spouses are on the same page. Although it is still advisable to hire an attorney to ensure that you are getting your fair share of rights in this, it is not required.

  • summary dissolution

Summary Dissolution is a simplified divorce that is a great way to resolve the end of marriages in the short term.

First, California residency requirements must be met. Residency requirements state that one spouse must be a California resident for at least six months before filing the petition. Additionally, they must be residents of the county where the petition is filed at least three months prior to filing.

Second, both spouses must cite irreconcilable differences as grounds for divorce.

Thirdly, there should be no children born out of wedlock, nor should the female spouse be pregnant during these periods.

Fourth, the marriage must last less than five years.

Summary dissolution also restricts the amount of debt and community property you jointly own. It also states that both spouses must waive their rights to support filing for a summary dissolution.

In summary dissolution, spouses represent themselves in court, although they can always consult a divorce attorney.

  • collaborative divorce

A collaborative divorce is also an uncontested form of divorce. Both parties must sign a participation agreement, while their lawyers can draft the final agreement once things are resolved between the spouses.

Lawyers under this must be specialists in collaborative divorce and must aim to resolve matters amicably between the parties.

One point to remember here is that your collaborative divorce attorneys cannot represent you in court. If the collaborative process fails, you should hire divorce trial attorneys to take the case further for you.

  • mediated divorce

A common type of divorce is a mediated divorce. Both parties work with an external facilitator to resolve differences. The moderator assists the parties in drafting agreements and points of dispute.

A common divorce strategy is mediation. In these types of divorce cases, the two parties work together with an outside facilitator to resolve any differences outside of court. The moderator helps spouses resolve conflicts and disagreements.

Mediation often establishes child custody, handles property division, creates parenting plans, and determines support. This is a voluntary, non-binding process, and both parties must agree to the terms.

The mediator drafts the agreement for parenting plans, child support and custody, spousal support, and other family law disputes between spouses.

What is the divorce filing process in California?

The petitioner must provide or serve the other spouse with paper copies of the divorce, including the summons.

The respondent, that is, the other spouse, must file a response form within 30 days of service. In the event that the defendant spouse does not file an answer, he or she will be prohibited from bringing any claim in the divorce proceedings and filing any petition with the court for the same.

As noted above, California has residency requirements that both spouses must meet prior to the dissolution of the marriage.

If children are involved in the divorce process, the parties must complete a declaration form. Even without a divorce attorney, you can access the California Self-Help Guides, which contain links to all the necessary documentation and steps to take.

Once both parties have filed their motion and responses, the court will require them to file declarations and disclosures forms. The Statement for Disclosures includes Statements of Income and Expenses (Form FL 150) and a List of Assets and Debts (Form FL 142).

Once the filing of the petition is complete, the matter will be referred to a Family Resolution Conference (FRC) for consultation with the parties. The FRC judge will ask the parties about the status of the statements. The judge will also try to put the parties on the same line to resolve their divorce process.

Divorce is complex. Yours doesn’t have to be

Divorce is emotionally draining and it is highly recommended that you get an attorney who can guide you and, if necessary, represent you in court.

Contact Dolores López if you are considering divorce. Dolores López is a certified family law attorney in San Diego, Los Angeles and Riverside counties.

She can help you with your case, regardless of the situation. Don’t leave your rights to chance. Call (714) 733-7065 for legal guidance and representation.