2015: San Diego Divorce And Legal Separation: Some Basics

Every year, thousands of California couples go through the divorce process with varying results. Their issues include division of debts, division of assets, visitation, custody, alimony, child support, attorney fee contributions and many more. Here are some California divorce basics to help understand the complexity of divorce and please keep in mind that different counties have different local rules as well as other differences.

DO I NEED GROUNDS FOR A LEGAL SEPARATION OR DIVORCE IN SAN DIEGO SUPERIOR COURT?

In some states, there is a difference as to who is “at-fault” when filing for divorce. California is a “no-fault” state which means that neither party needs a reason to file for the divorce. However, grounds for a divorce need to be stated. The two grounds for divorce in California are:  Irreconcilable differences and Incurable insanity.  Irreconcilable differences require no extra proof. Medical proof that one spouse was insane when the petition was filed is required and evidence must be presented that the insanity is indeed incurable.

CAN YOU GET DIVORCED IF NEITHER SPOUSE LIVES IN CALIFORNIA

No, you or your spouse must have lived in California for six months and in your county for three months before filing a petition to dissolve your marriage and be a resident of the State of California. There is no residency requirement for filing for legal separation. However, if you were married in another state [or country] you can get divorced in San Diego as long as you meet the requirements for residency above.

WHAT RULES SHOULD BE FOLLOWED DURING THE DIVORCE PROCESS

Courts have created certain procedures and orders to ensure that both parties act in a certain way during their divorce proceedings. Accordingly, there are temporary restraining orders that go into effect automatically when the divorce process begins on the petitioner when the petition is filed and on the respondent when the respondent is served or signs notice of acknowledgment and receipt.  Some examples of this include: neither party will be allowed to take minor children out of state without the other spouse's written permission or a court order, neither party can cancel or change the beneficiaries on insurance policies or transfer property.  Additionally, spouses must notify each other before doing any out-of-the-ordinary spending—and be prepared to account for such expenditures to the judge.  In all instances, it is expected that the couple will be truthful and make full disclosures. 

WHAT ARE THE PROCEDURES TO FILE FOR DIVORCE

Step One: Obtain the proper forms from the clerk of your county's superior court. Or, go to the California Courts website www.courts.ca.gov

Step Two: Your forms must be filed with the clerk of the superior court in the county where you or your spouse live.  There are many mandatory judicial council forms.

Step Three: Copies of the Petition and Summons, and a blank Response, must be officially delivered (or, in legal terms, served) to your spouse by someone other than yourself who is over the age of 18 or a Notice and Acknowledgment must be signed by Respondent and filed which will also constitute proof of service.

Step Four: In the Response, your spouse then indicates what items need to be resolved by the court such as spousal support or custody of your children and other requests.

Step Five: Spouses have to complete disclosure declarations that provide information about income, expenses, assets and debts. These are mandatory and are called the preliminary declarations of disclosure.

Step Six:   You and your spouse should try and resolve all issues raised. If you reach an agreement, you may not have to appear in court and a judgment based on your agreement can be entered by the Court. 

Step Seven:  If you are unable to reach an agreement, you and your spouse will appear in court in which a judge will make the decisions. If your spouse does not file a Response in a timely manner or fails to file one at all, you may request a default and proceed to a default hearing to obtain a judgment.

This list is not all inclusive. There may be additional steps and requirements. Not all of these steps may be required and not all may occur in the order referenced above.  Specific questions or concerns should be directed to a qualified and experienced family law attorney.

HOW CAN I GET INFORMATION ABOUT MY SPOUSE DURING OUR DIVORCE OR LEGAL SEPARATION?

There are several legal procedures to assist with obtaining information from a spouse about property or finances.  One might take depositions (orally examine your spouse or other witnesses in person under oath) with court reporter and or video, send interrogatories (written questions) or submit an Inspection Demand (a request that your spouse turn over certain important documents).  Any or all of these can be used to obtain information and your spouse would be required by law to comply truthfully.

To gather information from third parties (an employer, bank or school, for example), you might have to subpoena the information. 

HOW WILL COMMUNITY PROPERTY BE DIVIDED?

California is a community property state.  This means that California law recognizes that both spouses make valuable contributions to a marriage during the marriage.  Accordingly, most property will be labeled either community property or separate property upon the decision to separate or quasi community property which means it would be community property [normally real estate] but is located outside San Diego County.

WHAT IS COMMUNITY PROPERTY?

All property that you and your spouse acquired during the marriage will be considered community property.  Wages, bonuses, raises, interest in pensions, profit-sharing benefits, stock options, retirement benefits or businesses owned by one or both of you all count as community property.  Upon divorce, each spouse is considered to own half of the community property. Debts incurred during the marriage are community debts as well. Student loans are an exception and are considered separate property debts however you can rebut this presumption by providing evidence that the education benefitted the community if the loan is less than 10 years old and was acquired during marriage.

WHAT IS SEPARATE PROPERTY?

Separate property is property acquired before your marriage and property received after the date of your separation with your separate earnings. Inheritances that were received during the marriage and gifts to you alone, not you and your spouse, are considered community if during this period but are not divided equally as long as you can trace the funds.  Debts incurred before your marriage or after your separation are considered your separate property debts.  Separate property is not divided equally during dissolution and is confirmed to the spouse whose property it is.

Problems with identifying separate property occur when separate property has been mixed with community property. However, you may be entitled to receive your separate property back even if it has been mixed through the tracing process. If very complicated, an experienced forensic CPA may be needed.

HOW CAN AN EXPERIENCED FAMILY LAW FIRM HELP ME IN MY PENDING FAMILY LAW CASE IN SAN DIEGO?

The law firm of Doppelt & Forney, a Professional Law Corporation is a firm with many years of exceptional family law experience. Our skilled lawyers have represented hundreds of clients in the San Diego area in their family law cases.  We are located in Rancho Bernardo on the I-15, off Bernardo Center Drive, with free parking and an elevator. Please feel free to contact our office for a complimentary and confidential consultation.  Come see us today to get help with your family law issues.

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