Divorce Lawyer San Diego
If you are considering divorce or have been served with a divorce petition, The Law Offices of Steven M. Bishop, CFLS, can help.
Divorce can be challenging, even when there aren’t bitter differences. The accompanying anxiety can make it difficult to make clear-headed decisions. Working with an attorney who understands and cares about your situation is essential to secure the results you need.
When you retain our services, you can rest assured we will manage your divorce with the utmost care and professionalism. Our attorney, Steven M. Bishop, is a specialist in family law, as certified by the California Board of Legal Specialization. He has over 40 years of experience with family law cases and handling divorce proceedings, including taking cases to trial, if necessary.
The best way to get all the answers you need is to schedule a consultation. This is your chance to ask a lawyer about any details of a divorce that you don’t understand and our legal services. The information that follows may help you prepare to ask the right questions during your consultation.
Table of Contents
- California Divorce Laws
- Disputes that May Arise in California Divorces
- Addressing The Common Myths Of Divorce
- FAQs about California Divorces
California Divorce Laws
The laws that regulate divorces are primarily set at the state level. California may have different rules than the ones you have experienced or read about in other states. Below, you’ll learn more about some of the laws that apply in California and what they might mean for your divorce.
- The Divorce Process In California
- California is a No-Fault State
- Residency Rules may Apply
- Waiting Periods Apply
- California Community Property Laws
Divorces in California must adhere to a set of steps that are required by the law. Not every divorce will follow the steps listed below, as spouses may reach a settlement early in the process. However, divorces that involve conflict will likely play out like the following example:
1) File the Petition For Divorce
The first step in any divorce in California is filing a petition for divorce with the state. You can find the forms that you need to file on the California court official website. You should speak to a lawyer before you make your filing to ensure that you are eligible to file and prepare properly.
2) Serve The Divorce Papers to Your Spouse
After you have filed the divorce papers, they will need to be served to your spouse. The papers must be served by a 3rd party (such as a professional process server) who is not part of the case. If the divorce is amicable, you may be able to serve them by mail rather than having a 3rd party involved.
Once the papers have been served, your spouse will have (30) days to submit a response. This response will also have to be filed properly with the court.
3) (Optional) Make Requests for Temporary Orders
Orders are court-mandated instructions that will dictate the actions of one or both parties in a divorce until another order replaces them or the divorce negotiations conclude. These orders may involve:
- Attorney fees
- Child support payments
- Child custody
- Spousal support payments
- Use of property
- Restraining Order
4) Negotiation or Litigation
Following the proper filing of both petitions, the questions of the divorce will have to be resolved through either negotiation between the spouses and their lawyers or litigation in court.
Spouses have broad freedom to negotiate without court interference (unless the terms appear to be coercive). Still, any disputes that cannot be resolved may have to be settled through litigation. Litigation typically involves many extra steps, including Financial Disclosure, Discovery Of Evidence, and Trial.
5) Final Judgement
The final judgment is the order from a judge that declares the terms for your completed divorce. It will be issued whether you have decided to end the divorce through negotiation or litigation.
The divorce is considered to be finalized as soon as the final judgment has been issued. Depending on the terms of the decree, you may have to meet some other obligations.
California is a No-Fault Divorce State
California operates under a no-fault system for divorces. That means that the spouse requesting the divorce does not need to prove that the other spouse did anything wrong. Instead, spouses are allowed to declare “irreconcilable differences” without blame.
While fault does not need to be established for the divorce to proceed, it may still be a factor in negotiations. For example, actions during the marriage may end up guiding judgments when it comes to alimony or child custody.
Residency Rules May Apply
California has residency rules in effect that may affect where you can file your divorce. In order to file for divorce in the state, you must have lived here for at least the last six months. In addition, divorce papers must be filed with the county, and you need to have lived in the county where you file for the last three months, whether that be San Diego County or otherwise.
If you have already separated from your spouse, you can file in any county. However, the residency rules will still apply. You will need to wait until one of you has resided in their current county for three months before filing. You may still be able to file for a legal separation without meeting the residency requirements.
Waiting Periods Apply
A waiting period applies to all divorces in California. The party that files for the divorce must wait at least six months from the date that the other spouse is served before the divorce can be finalized.
It may be possible to make the waiting period begin before papers are served if a court appearance is scheduled before that point.
California Community Property Laws
California operates under a community property system. Referring to the idea that when a couple is married in California, they are considered to be creating a common community of their property.
Property may be defined as anything that has value, including:\
- 401(k) plans
- Bank accounts and cash
- Life insurance with a cash value
- Pension plans
- Security deposits on apartments
The assets and debts accrued by the couple over the course of the divorce are considered to belong equally to both parties.
What this means for your divorce is that the court will prefer to divide marital property in half. The court will attempt to accomplish this by:
- Defining existing property and debt into either marital or separate
- Determining the value of any property defined as marital
- Dividing the debt and property that is considered to be marital
Not every marriage can be dissolved amicably. Your marriage may involve many disputes that need to be settled at trial.
It’s not a good idea to face these disputes without the assistance of a family law attorney. The terms that are settled at trial may be a part of your life for years or even decades to come. Below, you can learn more about the disputes that may be part of any divorce.
- Property division
- Debt division
- Child custody
- Child support
- Spousal support
Division of property is a frequent cause of disputes during divorces in California. While the court will try to divide marital assets equitably, the spouses may not always agree with how assets have been valued. That can lead to fights over who should be entitled to what pieces of property.
If you don’t properly represent yourself in these disputes, you could lose access to assets that you deeply value, such as family heirlooms or items that you’ve collected as part of your hobbies.
Just as spouses may fight over items they want, they may also fight over the debts that they don’t want. The court will attempt to divide debt equitably, but it’s possible that one spouse may be left with a debt that’s harder to manage.
Additionally, the spouses may not agree over whether a debt represents a “marital” debt, insisting instead that the debt belongs to one person. Without representation, you may have debts declared your sole responsibility rather than split equally.
Child custody disputes are some of the most emotionally charged disputes in any divorce. Therefore, working with representation can be essential if you want to approach these disputes with a clear mind.
Disputes may occur over:
- Legal custody: The right to make decisions about the children’s future, including:
- The school they attend
- The religious services they attend
- Counseling and therapy needs
- Their doctors
- Physical custody: The right to have the children reside with you
- Visitation: the schedule of time that each parent has with the child
In California, child custody disputes will be decided by the judge. When possible, the judge will approve an agreement made by the parents after disputes have been settled. When an agreement can’t be reached, the judge may make a decision based on recommendations from Family Court Services.
Child support is the amount that a parent has to pay each month for the support of a child, according to a court decision. It is common for disputes to develop around child support. Parents may argue over how much is owed and how much non-monetary support is worth.
Once child support is established, it may last until the child turns 18 without modification. If these agreements aren’t made equitably, you may need to live under the burden of excessive payments for years to come.
The court may order one spouse in a divorce to pay the other spouse a certain amount of money each month as a form of support. This support is typically referred to as alimony.
The judge may consider many different factors when deciding whether support should be provided and how much it should be. The judge may consider any of the following factors:
- The marketable skills of the spouse getting support;
- The job market for those skills;
- How long it will take the partner who gets support to get training to develop more marketable skills or to get a job
- How much the earning capacity of the spouse was impaired by periods of unemployment during the marriage/partnership.
This is a major area of dispute during divorces. The disagreements will often be over the amount of support, the period of time that it must be maintained, and whether it is open to modification.
We want you to avoid making the same mistakes that have caused serious problems for many who have gone through a divorce.
It is not uncommon for people to think they have no choice in a particular situation and make choices that leave them in very difficult positions in their divorce. Below, you’ll learn about some of the biggest myths about the divorce process in California.
Myth One: You should get ready to give up custody if you are not the mother
There is no reason to assume that you should give up on custody of your children, regardless of the circumstances. While many believe that California courts are biased toward awarding custody to mothers, that is not one of the actual factors used to determine custody.
To determine custody, the courts look at a range of different factors, including:
- Which parent has acted as the primary caregiver
- The ability each parent has to provide for the child, including their respective education level, health, and general well-being
- The relationship that each parent has with the child
- The physical and mental health of the child
- The child’s community bonds, including schools
In most cases where the parents are both healthy individuals, the court will prefer to reasonably accommodate the amount of time that the parents would like with the children.
You are not likely to lose most of your access to your children unless there is a safety concern or you voluntarily give up your chance at custody. However, don’t make the mistake of giving up custody over a misunderstanding of how state law is applied.
Myth Two: Cheating makes a big difference in divorce cases
Cheating can have catastrophic emotional consequences on a relationship. However, it is not considered to be a significant factor in California’s divorce law.
Assigning blame over the divorce is not necessary, as the state system isn’t based on fault. Therefore, cheating will rarely factor into the agreements between the couples, including agreements involving property or child custody.
Cheating may be a factor in:
- Prenuptial agreements that have cheating as a provision
- Money spent in pursuit of an affair (these debts may be assigned to one partner rather than divided)
Myth Three: Most divorces have to go to trial
The law gives spouses a lot of incentive to work together to reach a settlement in California. For that reason, most divorces do not need to go to trial in this state.
If it’s at all possible for you to reach an agreement, you should do so. As long as you reach an agreement, you don’t need to worry about requirements being dictated to you by a judge.
Reaching an agreement doesn’t need to mean giving up. If you have representation from an experienced lawyer, you can get advice about where you should apply pressure to get what you want most.
Myth Four: You can’t get a divorce unless your partner consents
In California, divorce does not need to be mutual. You will not be forced to stay in a marriage that you do not feel is in your interest.
To start a divorce, you will only need to submit the required paperwork and serve your spouse through the proper channels. Your spouse can choose whether or not to respond, but if they do not, they may be subject to a default judgment.
The simple fact is each divorce is going to be different. What worked for friends and relatives may not work for you. Therefore, you need to speak to an experienced lawyer to truly learn more about the options best for you because the decisions you make at this time may be unable to be revised later.
Divorce can be confusing for anyone. There are so many factors that apply to how divorce happens that it can be impossible for you to know what to expect. Below, you’ll find answers to some of the most commonly asked questions about divorce.
Will divorce be expensive? Can I afford it?
The costs of any divorce in California can vary depending on the unique circumstances. Amicable divorces where both partners are motivated to reach a settlement can cost significantly less than a divorce that involves many disputes and a trial.
However, you may not be responsible for the costs of a divorce. In some cases, one spouse may be asked to cover the attorney fees for both parties. You will have to make a special request to the judge for this to happen.
How can I tell if I will be asked to pay support?
It is difficult to say in advance whether or not you will be responsible for paying support to your spouse. The court will consider factors such as whether either spouse can support themselves effectively or give up work experience and employment opportunities to support the family.
Will I be held responsible for my spouse’s debts?
It is a feature of California’s community property laws that both assets and debts may be considered marital property and divided equally. Therefore, you may be held responsible for a share of your spouse’s debts.
However, not all debts are considered to be held in community. It may be possible, either as part of the agreement or the trial, to have certain debts assigned to a single person. This is more likely to happen if the debts were not shared.
For example, mortgages may be split if both spouses lived at the residence, but gambling debts related to one partner’s actions may be assigned to them only.
How likely is it that the terms can be modified after the divorce?
Once a divorce decree has been issued, it can be difficult to change the terms of that decree. However, it is not impossible.
In order to modify the terms of a divorce, you will need to appeal the judgment to the District Court of Appeals or file a motion to modify the decree with the court where the original judgment was filed.
Modifying the terms of a divorce decree can involve as much preparation and complexity as the original divorce. Appeals are not usually possible unless you can prove that the law was misapplied or that the other party acted in bad faith.
For example, if one party hid assets so that they were not properly divided, decrees may be revised. Changing an agreement that both parties signed can be harder than changing a judge’s order, as consent was implied.
You may have many more questions about divorce. The best way to get the answers you need is to schedule a consultation as soon as possible. A lawyer can help you understand how all the unique factors that may apply to your case.
Schedule Your Free Consultation with a San Diego Divorce Attorney
We want to make sure that you are protected throughout your divorce with our legal representation. To talk to us about your case, schedule a free phone consultation. Call us at our San Diego office at 619-598-0152 or send us an email.