Filing for divorce is an emotionally draining event. It is important to safeguard your financial future by ensuring that your divorce proceedings are handled in an objective, detail-oriented manner.
Obtaining experienced representation will protect your best interests and provide you with the knowledgeable support you need during this difficult time.
At The Law Offices of Steven M. Bishop, CFLS our divorce attorneys have over 40 years of experience handling complex divorce proceedings. As a certified specialist in family law by the California Board of Legal Specialization, Attorney Bishop can provide honest, practical advice and aggressive representation to help you achieve the results you deserve.
What are the grounds for a divorce in California?
California is a “no-fault” divorce state. In a no-fault divorce state, the spouse initiating divorce proceedings does not have to prove that the other spouse did something wrong. If you are unhappy in your marriage, you may file for divorce even if your spouse wishes to stay married.
To obtain a no-fault divorce in San Diego, simply state in your Petition for Divorce documents that one spouse cannot get along with the other, also referred to as “irreconcilable differences.”
How do I file for divorce in San Diego?
Filing for divorce begins with documentation and requires several steps and a waiting period:
- One spouse obtains a petition for divorce at the nearest courthouse in California. A petition for divorce is a document that asks the court to officially end your marriage. Once filled out and filed at the courthouse, the initiating spouse is referred to as the “petitioner.”
- Your spouse must be notified that you have initiated divorce proceedings. It is best to have the petition handed to your spouse in person by a service. If you cannot have the documents hand-delivered to your spouse, you may follow a mailing procedure.
After your spouse receives the petition for divorce, they are then referred to as the “respondent.” A respondent must follow the guidelines set to properly acknowledge receipt of the documents within 30 days and provide any information the petition may require.
- One spouse may request a temporary court order to settle child custody, support, and restraining orders during the divorce proceedings. By filing an Order to Show Cause hearing, a judge will be able to make temporary orders.
- Both spouses are required to engage in discovery, or the process of exchanging relevant documents and information relevant to the divorce, including income and expenses.
The Preliminary Declaration of Disclosure is a court form that will list community and separate property.
- After discovery, both spouses and their attorneys may begin negotiations for settlement. While representation is not a requirement, it is highly recommended that you obtain experienced counsel to protect your best interests during the highly emotional proceedings.
If all parties agree, one attorney will draft a Marital Settlement Agreement. The contract will include all the terms of the agreement. Some terms that should be listed in the Marital Settlement Agreement include but are not limited to:
- If you have children, a long-term and detailed parent-time schedule and child custody plan
- Details regarding spousal support and child support, if applicable
- Specifics regarding life insurance
- Specifics on retirement accounts and how they will be divided
- Specific details about whether the marital home will be sold or kept
- If the parties do not agree on all issues in the divorce proceedings, mediation or a trial will take place. In mediation, spouses can work towards an agreement with a professional mediator. However, if one issue cannot be agreed upon, then the divorce will move into the trial phase.
If you and your spouse will be settling your divorce in court, it is imperative that you seek representation by a trusted San Diego divorce attorney. A judge will hear both spouses and their attorneys and make the final decision.
- Once the trial is over and both parties sign the Marital Settlement Agreement, the next document to sign will be the Judgment of Dissolution of Marriage.
The Judgment of Dissolution of Marriage will contain all orders from the court. The document is then filed, and the court will mail a Notice of Entry of Judgment to each divorce attorney.
Do I need to file for separation first?
No, California does not require spouses to enter into an official separation before continuing with divorce proceedings. You and your spouse can freely decide if and when you would like to divorce.
What is the difference between getting divorced and legal separation?
A legal separation will end the relationship in the eyes of the law but leaves the marriage intact. Couples who are legally separated are not able to remarry. However, remaining legally married but separated has financial advantages.
For example, a court will divide the marital property and determine spousal support, if applicable, and child support. If a couple chooses to legally separate, the division of assets is called separate maintenance.
How long does the divorce process in San Diego take?
Divorce in San Diego has a mandatory waiting period of at least 6 months. If all parties agree on every aspect of their Marital Settlement Agreement, the quickest a divorce can be finalized is 6 months from the time the petition for divorce was finalized.
It should be noted that a contested divorce, or a divorce where spouses do not agree on the settlement, can take a year or more to resolve and be finalized.
How will a divorce affect the business we own together?
California is a community property state, meaning that all marital assets are divided equally. When spouses own a business together, property division can be more complex. The court will consider the following factors when dividing a business:
- How involved are the spouses in the business?
- Who is the driving force behind the business?
- Is your business a private practice?
It may be in your best interests to use a third party to value your business. Consult your San Diego divorce lawyer and discuss the details of your business and your goals for after the divorce is finalized.
How will my military benefits be divided in a divorce?
If you are in the military and your residing state is California, your divorce will be subject to California’s community property laws. Your spouse will be entitled to half your military benefits, including your military pension, regardless of the length of the marriage.
How do I file for a military divorce?
In order for California to have jurisdiction over your divorce proceedings while an active-duty member, you must be personally served with a summons and petition for divorce.
If you are deployed, the court will delay proceedings when you are on active duty plus 60 days following. Military divorces can become complex and difficult to navigate. Having a military divorce attorney by your side can provide the necessary guidance you need.
Can I obtain a divorce if I do not know where my spouse is?
Obtaining a divorce without locating your spouse is referred to as a default divorce. There are many steps to take before a court will grant a default divorce. An experienced divorce attorney in San Diego will be able to guide you through the process and help convince the court of your efforts.
Generally, a spouse must:
- Make diligent and reasonable efforts to locate and serve the other party
- Publish a notice in a newspaper that circulates the area of their spouse’s last known location
- Keep the notice in the paper for a reasonable amount of time
- File affidavits regarding your efforts to notify your spouse
What is considered “diligent” and “reasonable” is up to the court. A divorce attorney will be able to argue on your behalf that you followed through with the necessary steps and should be granted a default divorce.
Where do I file for divorce if my spouse and I live in different states?
When spouses live in different states, residency is important. Most states require proof of residency to be at least six months. Other states require residency up to a year to qualify. Whichever spouse can establish residency is the state you must file a petition for divorce. If both spouses qualify as residents, it may be advantageous to file before your spouse and save the traveling expenses.
Jurisdiction is another factor to consider. A court must have jurisdiction over the nonresident spouse in order to make decisions about child custody, spousal support, and property. When the nonresident spouse is served divorce papers or consent to jurisdiction, the court will be able to make binding decisions in the divorce process.
What financial documents will I need to provide during a divorce?
During the discovery phase of the divorce process, both spouses must disclose all assets and debts. If an asset, account, or anything of worth is not provided during the discovery, a court can consider the act to be a failure to disclose.
The court can impose penalties, change the divorce settlements and award everything to your spouse, and other harsh stances. Hiding assets are taken very seriously by the California courts.
What is community property in a divorce?
California is a community property state. Community property is all earnings, assets, and debts acquired during the marriage. In a community property state, everything is divided equally.
Though community property may seem straightforward, there are times when a court will consider fault when dividing property. In other instances, a court may categorize all assets, including separate assets, as community property and leave the burden on each spouse to prove if an asset or earning is separate.
In many contested divorces, the categorization of community property or separate property is key.
What is separate property?
Separate property is property owned by one spouse, not both. Usually, separate property involves anything the spouse acquired before marriage or after legal separation. Separate property may also include:
- An inheritance
- Awards or settlements won
It is important to speak to your divorce attorney to determine what proof you need to show what property is separate or community.
How are retirement accounts divided during a high asset divorce?
The division of retirement accounts can be complicated. Despite California’s community property laws, each spouse does not take half of each asset, but rather each spouse has equal the value overall.
Pensions and other retirement accounts can prove difficult to value and evenly distribute during a high asset divorce. A divorce attorney can discuss your goals and protect your best interests in negotiations.
Will I owe my spouse alimony or spousal support?
Spousal support can be a very contentious subject. The courts will consider several factors when determining the amount and duration of alimony, including:
- What was the standard of living during the marriage?
- Does your spouse work?
- Does your spouse have any marketable skills?
- What contributions did your spouse make to your education or career?
- Did your spouse forego a career to stay home and raise the children?
- How long were you and your spouse married?
- How old is your spouse?
- Are you both in good health?
The court may consider other factors. A spousal support attorney in San Diego will be able to evaluate your unique matrimonial circumstances and help you estimate alimony.
How much is child support in California?
California uses an income share method to determine child support. The income share method totals the cost of raising a child, and then the non-custodial parent will pay a percentage of the total cost based on the proportion of both parents’ income.
The factors in the income share method involve:
- The gross income of each parent
- The percentage of time spent with each parent, or parent-time
- Income tax deductions that a parent can claim, like mortgage interest
- Childcare costs of one or both parents
- Payroll deductions, pensions, and health insurance premiums
Several online child support calculators can help you estimate your child support.
Can I move in with my significant other before my divorce is final?
No law in California states that you cannot move in with a significant other before your divorce is final. Nevertheless, it may not be in your best interests.
Moving in with your new partner could have a negative impact on your divorce proceedings in the following ways:
- Is moving in with your new partner in the best interests of your children?
Will your children be upset if they see you in a new relationship while they are dealing with the separation of their parents? If so, a judge may view the move as damaging to your children and give custody to your spouse.
- Does your current spouse support your relationship?
If your children know your new partner and your spouse is comfortable, you may be able to get a written agreement stating that you both may live with and see other people. A judge may overlook a new significant other in the home if both sides and the children are comfortable.
- Will your spousal support be affected by the additional income of your new significant other?
Spousal support is largely based on need. Adding the income of your new partner to the household income may make you ineligible for alimony.
- Are you using community assets to pay for dinners or gifts for your new partner?
Community property, including bank accounts and credit cards, should never be spent outside the marriage during your divorce proceedings. A California judge could determine any funds spent on a new partner should be reimbursed to your spouse in the division of marital assets.
- Does your spouse have legal rights to the home?
If your spouse has legal rights to the home, moving in a new partner could prove detrimental to the divorce proceedings. A spouse may feel slighted by the new relationship and express it in negotiations.
- Does your new partner have a checkered past?
If your new significant other has a history of drug use, criminal activity, or domestic violence, a judge may decide it is in the best interests of your children to be with your spouse.
Divorce is an emotionally turbulent legal battle. An experienced family law attorney can help guide you through the process and avoid making costly mistakes.
How does domestic violence affect my divorce?
While California is a no-fault divorce state, there are special circumstances that may impact your divorce proceedings. Domestic violence can affect the outcome of your divorce in three ways:
- Spousal support:
Spousal support was created to reduce the financial hardship on divorcing couples with unequal economic means. However, if a spouse has a felony or misdemeanor domestic violence conviction, they are automatically banned from receiving spousal support.
- Child custody:
The courts will always rule in the child’s best interests. Any domestic violence conviction creates a presumption of abuse. The premise is that an abusive spouse will also be an abusive parent. If a spouse has a domestic violence conviction, the court will not grant them sole or joint custody.
In extreme cases, an abusive spouse may only be granted supervised visitations at the court’s discretion.
- Property division:
In California, if a spouse is convicted of domestic violence, it can significantly affect the division of property. A judge may order an abusive spouse to give their share of the community property to the abused spouse if one or more of the following factors are met:
- The abusive spouse hid marital assets in an attempt to control the abused spouse
- The abused spouse was unable to work or lost their place of employment due to their threats or abuse
- If the abused spouse has medical bills and other debts related to the injuries they suffered in the marriage, the court may order a domestic abuser to forfeit their share of the community assets to settle the debts. Or a domestic abuser may be ordered to pay all debts related to the violence.
If you have suffered domestic violence in your marriage or if you have been accused of perpetrating the abuse, contact The Law Offices of Steven M. Bishop, CFLS. Domestic violence is a serious issue that can have a profound effect on your divorce. Schedule a consultation to discuss your rights and your best course of action.
Contact Our Divorce Attorneys in San Diego, California Today
At The Law Offices of Steven M. Bishop, CFLS, we understand divorce is an emotionally taxing, complex process. When you have a knowledgeable and experienced San Diego divorce attorney by your side, you can rest assured your best interests will always be represented with integrity.
Our talented legal team has a long track record of success helping individuals into the best position possible after their divorce is finalized. Contact our family law specialist today and schedule a consultation to discuss your unique marital situation. You can contact us by clicking here or dialing 619-535-0678.