The term “family law” is often misunderstood. Instead of being a simple term of legal art, it is really the amalgamation of a series of differing laws. These laws are made to protect the family and not made for any other reason. So, if you are looking for the glue that holds these series of laws together, it is that.
In addition, you have to understand the starting point for many of these laws. They are made to protect the spouse that has given up their career for the benefit of the family (traditionally, that was the wife, but lately has become more and more the husband). So, that public policy is made to help create an incentive to favor the creation and implementation of the family. Although some of the laws made seem unfair, they really are made in the overall context of family creation and sustainability.
Below is a great article on divorce laws.
http://californiafamilylawanddivorce.com/2012/06/08/california-divorce-101/
Divorce 101
As a California family-law attorney, I take for granted that the law related to family law is simple. For reasons that I need to keep reminding myself, it is important that I remember that not everyone knows the basics of the legal issues surrounding a California divorce. Knowing at least the basics about California law on divorces, is an important first step to understanding your divorce.
For starters, let’s start with the word “alimony”. Most individuals who use this term use it to refer to spousal support. The term “alimony” dates back to the 1650s, which defined the term as an “allowance to a wife from a husband’s estate, or in certain cases of separation.” (Source: Online Etymology Dictionary) So, whenever I hear someone use the word “alimony”, it reminds me and raises a red flag that the person using the word has little knowledge of the current California family law infrastructure. While “alimony” derives its roots from husband paying support to wife; the term “spousal support” is gender-neutral—where one spouse pays support to his or her spouse. So, why does this simple little legal term have legal significance? Because, despite the fact that we live in the year 2012, many people still feel that only husbands pay support; and that only wives receive support. . . . and that the law is designed to be fair to both parties, not just one party.
So, let’s get started on some of the basics of family law.
Legal Basis for Divorce
For most individuals who file divorce in California, the legal basis for divorce is “irreconcilable differences.” California is a “no fault” state—which means the petitioner (the person filing for divorce) does not have to prove any fault by either party. Simply put: the court will grant the divorce whether or not the other party consents.
California—A Community Property State
California is one of a few states in the United States that is considered a “community property” state. Specifically, this means that, for a few exceptions, anything and everything acquired during the marital period is considered community property. The community is defined as beginning on the date of marriage and ending on the day of separation. While it’s easy to determine date of marriage, it’s not always so easy to determine date of separation. Approximately 10% of couples argue about when the parties separated.
What is Included in the Community Estate?
Community estate includes all assets, to include money in bank accounts, certificates of deposit (CDs), money market accounts, cash put under the mattress, cars, boats, homes, businesses, etc.; all debts, to include credit-card debt, taxes, mortgages, car loans, etc.; all retirement accounts to include IRAs, Roth-IRAS, 401(k), pensions, etc. and all liabilities, to include auto accidents or other torts.
What is Not Included in the Community Estate
◾Assets, debts or liabilities acquired before marriage
◾Assets, debts and/or liabilities acquired after date of separation
◾Gifts given during the marital period
◾Assets purchased during the marital period that can be traced back (with proof) to separate property funds
◾Rental income or profits from real-estate purchased before marriage or after date of separation.
Eligibility to Divorce in California
California law does not require that a party marry in California in order to file divorce in California. Establishing jurisdiction in California is fairly easy: at least one party must have been a California resident for at least six months in California and a resident in the county in which they intend to file at least three months preceding the filing of the Petition for Dissolution of Marriage. For example, petitioner, a Florida resident can file for divorce in San Francisco if her husband has lived in California for at least six months and San Francisco for at least three months.
Length of Time it Takes to Get Divorce Finalized
The soonest a divorce can be finalized is six months. This is because California law has a mandatory “cooling off” period. In reality, the process takes much longer. Some factors include: number of legal issues—the more issues there are for the court to resolve, the longer the process takes. For instance, a short-term marriage with no kids, no property, and no support issues will conclude much quicker than a case that has numerous and complicated legal issues such as custody, visitation, spousal support, child support and so on. Personality of the parties. For example, a spouse who refuses to accept the inevitability of divorce, can and will do anything and everything possible to delay the divorce process. Such delays can cause the divorce process to last several years!
Other Factors Causing Delay of Divorce
◾Personality of the parties’ lawyers. For example, while husband might hire an attorney focused on prompt and efficient global settlement, wife might hire an attorney who loves to litigate (fight) about everything on her client’s behalf—especially, if her client has a large pocket-book and can afford to pay the exorbitant legal fees.
◾The court’s calendar. Under circumstances, the court can continue a court hearing several times due to the court’s limited court-room availability.
◾Level of discord between the parties. For example, even a “simple” divorce can take years to resolve if the parties cannot reach agreements on the most basic of issues, e.g. who gets the family pet.
◾Level of honesty of either or both parties has toward the other party. For example, one or both parties can fail to fully disclose their assets—causing undue delays and legal fees, to include, but not limited to, filing legal motions and briefs should court intervention be required.
Issues that Can Complicate and delay Dissolution Proceedings or Settlement
◾One or more parties hides assets
◾Valuing business enterprises
◾Valuing separate and community interests in personal property purchases
◾Valuing separate and community property interests in the acquisition of real property
◾Valuing separate and community property interests in the separate or community-based businesses (sole proprietorships, LLCS, S-Corps, Corporations)
◾Valuing separate and community-estate interests in pensions and retirement accounts
◾Calculating child and/or spousal support when one spouse not working (or refusing to work)
◾Calculating child and/or spousal support when one or both parties self-employed
◾Parties contesting joint legal or joint physical custody
◾Parties contesting visitation
◾Parties disputing date of separation
◾Calculating credits and/or reimbursement claims